case: 5:09-cv-02099-ddd doc #: 1-1 filed: 09/10/09 1 of 16 ...smith, rashoun 634 e buchtel ave apt...

COURT OF COMMON PLEAS, SUMMIT COUNTY, OHIO

SMITH, RASHOUN

634 E BUCHTEL AVE

APT 107

AKRON, OH 44304

Plaintiff Case No. CV-2009-08-6380

vs SUMMONS

CITY OF AKRON

C/O MAYOR DON PLUSQUELIC

STE 200 MUNICIPAL BLDG

166 S HIGH ST

AKRON, OH 44308

Defendant

To the following named defendants:

CITY OF AKRON

C/O MAYOR DON PLUSQUELIC

STE 200 MUNICIPAL BLDG

166 S HIGH ST

AKRON, OH 44308

You have been named defendant(s) in a complaint filed in Summit County Court Of Common Pleas, Summit County Court House, Akron Ohio 44308, by :

SMITH, RASHOUN

634 E BUCHTEL AVE

APT 107

AKRON, OH 44304

Plaintiff(s). A copy of the complaint is attached hereto. The name and address of the plaintiff's attorney is-JOHN C. WEISENSELL,

23 SOUTH MAIN ST.

301 NANTUCKET BLDG.

AKRON, OH 44308

You are hereby summoned and required to serve upon the plaintiffs attorney, or upon the plaintiff, if he has no attorney of record, a copy of an answer to the complaint within twenty-eight days after service of this summons on you, exclusive of day of service. Your answer must be filed with the Court within three days

after the service of a copy of the answer on the plaintiffs attorney, or upon the plaintiff, if he has no attorney of record.

If you fail to appear and defend, judgment by default may be rendered against you for the relief demanded in the complaint.

Daniel M. Horrigan

Clerk, Court Of Common Pleas

Summit County, Ohio

September 8, 2009 By: s/ M. Randies Deputy Clerk

EXHIBIT A

Case: 5:09-cv-02099-DDD Doc #: 1-1 Filed: 09/10/09 1 of 16. PageID #: 5

IN THE COtJRTOF COMMON PLEAS

; SUMMIT COUNTY, OHIO S

RASHOUN SMITH

634 East Buchtel Avenue

Apartment 107

Akron, Ohio 44304

Plaintiff

vs.

CITY OF AKRON

c/o Mayor Don Plusquellic

Suite 200 Municipal Building

166 South High Street

Akron, Ohio 44308

-and-

CITY OF AKRON POLICE DEPARTMENT


Akron, Ohio 44308

-and-

FORMER POLICE CHIEF

MICHAEL MATULAVICH

c/o City of Akron Police Department


Akron, Ohio 44308

-and-

JOHN AND JANE DOE NOS. 1-10

Names and addresses unknown

c/o City of Akron Police Department


Akron, Ohio 44308

Defendants

case no, 2009 0 8 638 0

JUDGE

ASSIGNED TO JUDGE HUNTER

COMPLAINT

JURY DEMAND ENDORSED HEREON


COMPLAINT WITH JURY DEMAND ENDORSED HEREON

Now comes the Plaintiff, by and through counsel, and for his Complaint, states as

follows:

THE PARTIES

1. Plaintiff RAUSHOUN SMITH at all times resided in and resides in the City of

Akron, Summit County, Ohio.

2. Defendant CITY OF AKRON (hereinafter "Akron") is a municipal corporation

and/or political subdivision of the State of Ohio and at the time of the events in question was the

employer of Defendants Michael Matulavich and John and Jane Doe Nos. 1-10. Defendant City

of Akron is charged with and responsible for appointing and promoting, through Mayor Don

Plusquellic, the members of the City of Akron Police Department and for the supervision,

training, instruction, discipline, control and conduct of the City of Akron Police Department and

its personnel. At all times relevant hereto, Defendant Akron had the power, right, and duty to

control the manner in which the individual defendants carried out the objectives of their

employment and to see that all orders, rules, instructions, and regulations promulgated for the

Akron Police Department were consistent with the Constitution and the laws of the City of

Akron.

3. At all times pertinent hereto Defendant MICHAEL MATULAVICH (hereafter

"Matulavich" or "Chief Matulavich") was the Police Chief for the City of Akron Police

Department. As such, he was the responsible party for supervising, training, instructing,

disciplining, and controlling the conduct of Defendants John and Jane Doe Nos. 1-10. He was


also charged with promulgating all orders, rules, instructions, and regulations of the City of

Akron Police Department, including, but not limited, to those orders, rules, instructions and

regulations concerning the use of force and of deadly weapons. He was also charged with

promulgating all orders, rules, instructions, and regulations of the City of Akron Police

Department regarding procedures to be implemented when police officers have interactions with

citizens while those officers are both off duty and on-duty at the time of interaction. Upon

information and belief, Chief Matulavich is a resident of Summit County, Ohio.

4. Defendants JOHN AND JANE DOE NOS. 1-10 are unknown Defendant Akron

Police Officers who either participated in and/or failed to prevent the torts hereinafter described

from occurring. The unlawful conduct of these as yet unknown officers resulted in the denial of

Plaintiffs Constitutional and civil rights.

BACKGROUND INFORMATION AND FACTS COMMON TO ALL COUNTS

5. On or about August 27, 2007, Plaintiff was driving his car in the City of Akron

when Defendants John and Jane Doe Nos. 1-10, or some of them, began following Plaintiff.

6. Defendants followed Plaintiff for approximately two to three (2-3) blocks.

Plaintiff stopped his car and got out intending to ask the officers why they were following

Plaintiff.

7. Before he could do so, at this point, and before Plaintiff said anything, Defendants

threw Plaintiff onto the hood of the car and one of the Defendants yelled, "If you move, I'm

going to kick your ass."

8. Defendants then threw Plaintiff to the ground on his stomach and began punching

Plaintiff in the face repeatedly.


9. Without basis or provocation, Defendants punched Plaintiff, pepper sprayed

Plaintiff, and used a taser on Plaintiff.

10. Plaintiff was taken to the Summit County Jail.

11. The Defendants took Plaintiff to Akron General Medical Center where he spent

the night under observation as a result of the injuries suffered at the hands of Defendants.

12. Defendants took Plaintiff back to jail, and then back to the hospital where Plaintiff

spent the night again under observation.

13. The following morning, Plaintiff was released on a signature bond.

14. Plaintiff was charged with two (2) counts of receiving stolen property, one (1)

count of resisting arrest, and one (1) count of driving under suspension.

15. Plaintiff pled guilty to driving under suspension.

16. All other charges were dismissed.

17. As a result of the blows to Plaintiffs neck, head, shoulders, back and arms,

Plaintiff sustained abrasions, bruising, and other injuries to his body.

18. Plaintiff also sustained a closed head injury, hematoma, and injuries to his eyes

including corneal abrasion, as well as burns to his body from the taser.

19. Defendants John and Jane Doe Nos. 1-10 used excessive force against Plaintiff.

Plaintiff was already on the ground and posed no immediate danger to said Defendants.

20. The force applied by Defendants John and Jane Doe Nos. 1-10 was excessive,

unnecessary, and unjustified.

21. Defendants John and Jane Doe Nos. 1-10 exhibited conduct and acted in a way

that violated certain standard operating procedures of the City of Akron Police Department,


certain procedures outlined in the Akron Police Department Operations Manual, and other law

enforcement standards.

22. Defendant Akron Police Department and City of Akron inadequately and/or

improperly trained, and or failed to train Defendants John and Jane Doe Nos. 1-10 with respect

to the proper use of force and/or the proper actions to be taken both while off duty or on duty and

actions to be taken to obtain an arrestee's compliance with an instruction or to obtain cooperation

from an uncooperative arrestee.

23. Defendants' actions and/or omissions were pursuant to a policy, practice and/or

custom of inadequate supervision of Akron Police Officers including the supervision of officers

in situations such as that described above.

FIRST CLAIM FOR RELIEF: VIOLATION OF 42 U.S.C. §1983 BY DEFENDANTS and

DEFENDANTS JOHN AND JANE DOES #1-10 AGAINST RASHOUN SMITH.

24. Plaintiff realleges paragraphs one through twenty-three (1-23) as if fully restated

herein and further alleges Defendants John and Jane Doe Nos. 1-10 applied excessive force to

Plaintiff Rashoun Smith by assaulting him.

25. Defendants' conduct violated Plaintiffs rights guaranteed .by the United States

Constitution, including, but not limited, to the Fourth, Fifth, and Fourteenth Amendments.

26. Defendants further caused Plaintiff to be arrested and/or detained without

probable cause in violation of his right to be free from unreasonable searches and seizures

governed by the Fourth Amendment to the United States Constitution.

27. Defendants are liable to Plaintiff both individually and in their official capacity.

28. The assault and arrest and/or detention of Plaintiff deprived him of rights secured

by the laws of the United States of America and the United States Constitution.


29. Defendants deprived Plaintiff of these aforementioned rights under color of law.

30. The assault and arrest and/or detention of Plaintiff violated 42 U.S.C. §1983.

31. The actions of Defendants were malicious, willful, wanton, and displayed a

reckless disregard for Plaintiffs welfare.

32. As a direct and proximate result of these unlawful actions, Plaintiff has suffered

severe physical and emotional harm for which he may never fully recover.

33. As a direct and proximate result of these unlawful actions, Plaintiff has incurred

expenses for necessary medical and rehabilitative services and will continue to incur said

expenses into the future.

SECOND CLAIM FOR RELIEF: VIOLATION OF 42 U.S.C. §1983 BY CITY OF

AKRON and AKRON POLICE DEPARTMENT AGAINST RASHOUN SMITH.

34. Plaintiff Rashoun Smith realleges paragraphs one through thirty-three (1-33) as if

fully restated herein and further alleges the violations of Plaintiffs constitutional rights as

described herein was the direct result of Defendant Akron and Defendant Akron Police

Department's (hereafter "APD") custom, practice and/or policy in that APD officers are

inadequately trained, improperly trained, and inadequately or improperly supervised. The APD

failed to adequately and properly train and/or supervise its officers to ensure that they adhere to

proper police procedures. In addition, Akron and the APD acted with deliberate indifference

towards the constitutional rights of Plaintiff.

35. Because of Akron and APD's policies, procedures, patterns, practices, and

customs including, but not limited, to training, supervision, investigation, and discipline of APD

officers, Defendants Akron and APD are liable to Plaintiff Rashoun Smith pursuant to 42 U.S.C.

§1983.


36. As a direct and proximate result of the unlawful conduct of Akron and APD and

its employees and/or agents, Plaintiff has suffered permanent physical and emotional injuries,

has incurred necessary and reasonable medical expenses and will continue to incur said expenses

and damages into the future.

THIRD CLAIM FOR RELIEF: ASSAULT AND BATTERY UPON RASHOUN SMITH

BY DEFENDANTS JOHN AND JANE DOES #1-10.

37. Plaintiff realleges paragraphs one through thirty-six (1-36) as if fully restated

herein and further alleges that on August 27, 2007, Plaintiff Rashoun Smith was sprayed with

pepper spray in the face and other parts of his body by Defendants John and Jane Doe Nos. 1-10.

38. Defendants John and Jane Doe Nos. 1-10 continued to repeatedly strike Plaintiffs

face, head, and neck and violently throw his body around onto a vehicle and onto the ground.

Defendants also tasered Plaintiff with no basis to do so and no provocation causing burns on

Plaintiffs body.

39. Defendants' conduct constituted a willful threat or an attempt to harm or touch

Plaintiff Rashoun Smith offensively, and the threat and/or attempt placed Plaintiff in fear of such

contact, and further, Defendants did offensively contact, strike, and injure Plaintiff.

40. In using excessive force and by spraying Plaintiff with pepper spray and

repeatedly striking Plaintiff, and tasering Plaintiff, Defendants intended to cause and in fact did

cause harmful and/or offensive contact with Plaintiff.

41. Defendants assaulted and committed a battery upon Plaintiff.

42. The actions of Defendants were malicious and/or willful and/or wanton and/or

displayed a reckless disregard for Plaintiffs welfare.


43. As a direct, proximate and foreseeable result of Defendants' conduct, Plaintiff

suffered permanent and severe emotional and physical harm and other injuries described herein,

including, but not limited to, a closed head injury, burns, and injuries to Plaintiffs eyes,

including corneal abrasions.

FOURTH CLAIM FOR RELIEF: EXCESSIVE FORCE

44. Plaintiff realleges paragraphs one through forty-three (1-43) as if fully restated

herein and further alleges in the course of confronting Plaintiff Rashoun Smith that Defendants

John and Jane Doe Nos. 1-10 used force which was clearly excessive and objectively

unreasonable under the circumstances existing at the time.

45. Defendants used said excessive force with the intent to cause unnecessary harm to

Plaintiff, which in fact, occurred.

46. Defendants' assaults and their use of excessive force against Plaintiff violated

Plaintiffs rights under the Fourth Amendment to the United States Constitution protecting

Plaintiff from unreasonable searches and seizures, and Plaintiffs rights under the Fourteenth

Amendment of the United States Constitution which guarantees Plaintiffs due process of law.

The Defendants' conduct violates laws that were clearly established as of August 27, 2007.

47. The seizure of Plaintiff with the use of excessive force was made under the color

of state law.

48. Defendants are liable to Plaintiff in their individual and in their official capacities.


severe physical and emotional harm for which Plaintiff may never fully recover.


50. As a direct and proximate result of these unlawful actions. Plaintiff has incurred



FIFTH CLAIM FOR RELIEF: MUNICIPAL LIABILITY

51. Plaintiff realleges paragraphs one through fifty (1-50) as if fully restated herein

and further alleges the violations of Plaintiff s constitutional and civil rights as described herein

was the direct result of Defendant Akron's custom, practice, policy and/or procedure in that APD

officers are inadequately trained and have been led by Akron to believe they can, without

impunity, subject individuals to excessive force, and therefore, harass, intimidate and threaten

individuals pursuant to the persistent action, practice and/or policies of the City that the officers

will be immune from discipline, reprimand, or prosecution for violating constitutional and/or

civil rights of the citizens of Akron.

52. Because of its policies, procedures, patterns, practices, and customs, including,

but not limited, to training, supervision, investigation, and discipline of APD police officers,

Defendant Akron is liable to Plaintiff pursuant to 42 USC §1983.

53. Defendant Akron is also liable to Plaintiff pursuant to the doctrine of respondeat

superior for the acts and omissions of its employees, servants, and agents acting within the

course and scope of their employment or agency under the City's direction, control, supervision,

and/or furtherance of the City's business.







SIXTH CLAIM FOR RELIEF: NEGLIGENCE

56. Plaintiff realleges paragraphs one through fifty-five (1-55) as if fully restated

herein and further alleges all Defendants owed a duty of reasonable care to Plaintiff and failed to

exercise reasonable care in their investigation of and subsequent incarceration of Plaintiff

Rashoun Smith.

57. Defendants at all times acted with actual malice or with wanton and reckless

disregard to the welfare of Plaintiff.






SEVENTH CLAIM FOR RELIEF: NEGLIGENT TRAINING AND SUPERVISION BY DEFENDANT AKRON, APD, and CHIEF MATULAVICH

60. Plaintiff realleges paragraphs one through fifty-nine (1-59) as if fully restated

herein and further alleges that Defendants APD and Matulavich negligently caused the above

described injuries to Plaintiff by failing to properly train, supervise, and control the conduct of

Defendants John and Jane Doe Nos. 1-10.

10


61. Defendant Akron negligently caused the above described injuries to Plaintiff by

failing to properly train, supervise, and control the conduct of Defendants John and Jane Doe

Nos. 1-10.

62. Defendant Akron, as the employer of Defendants, is liable under the doctrine of

respondeat superior for the tortious conduct of the individual Defendants.

EIGHTH CLAIM FOR RELIEF: INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS

63. Plaintiff realleges paragraph one through sixty-two (1-62) as if fully restated

herein and further alleges that Defendants John and Jane Doe Nos. 1-10 acted in an extreme and

outrageous manner with regard to the excessive force, assault, battery, and false imprisonment

committed upon Plaintiff, and acted intentionally and with reckless disregard for the Plaintiffs

welfare, and inflicted severe and permanent emotional distress on Plaintiff.

64. The conduct of Defendants was so extreme and outrageous that it was utterly

intolerable and exceeded the bounds of decency.

65. Defendants Matulavich and APD caused the above referenced damages to the

Plaintiff by failing to properly train, supervise, and control the conduct of Defendants John and

Jane Doe Nos. 1-10.


respondeat superior for the tortuous conduct of the individual defendants.

67. Defendants' conduct proximately caused emotional injury to Plaintiff.

68. The mental anguish suffered by Plaintiff is of a nature that no reasonable person

should be or can be expected to endure.

11


69. As a direct and proximate result of Defendants' unlawful conduct, Plaintiff has

suffered severe and substantial emotional distress which includes extreme depression, post

traumatic stress disorder, and the manifestation of physical illness.

NINTH CLAIM FOR RELIEF: NEGLIGENT INFLICTION OF EMOTIONAL

DISTRESS

70. Plaintiff realleges paragraphs one through seventy (1-69) as if fully restated

herein and further alleges that Defendants John and Jane Doe Nos. 1-10 acted in an extreme and

outrageous manner with regard to the excessive force, assault, battery, and false imprisonment

committed upon Plaintiff, and acted negligently towards Plaintiffs welfare, and as a result,

inflicted severe and permanent emotional distress on Plaintiff.

71. The conduct of Defendants was so extreme and outrageous that it was utterly

intolerable and exceeded the bounds of decency.

72. Defendants Matulavich and APD caused the above referenced damages to the

Plaintiff by failing to properly train, supervise, and control the conduct of Defendants John and

Jane Doe Nos. 1-10.


respondeat superior for the tortuous conduct of the individual defendants.

74. Defendants' conduct proximately caused emotional injury to Plaintiff.

75. The mental anguish suffered by Plaintiff is of a nature that no reasonable person

should be or can be expected to endure.

76. As a direct and proximate result of Defendants' unlawful conduct, Plaintiff has

suffered severe and substantial emotional distress which includes extreme depression, post-

traumatic stress disorder, and the manifestation of physical illness.

12


TENTH CLAIM FOR RELIEF: PUNITIVE DAMAGES

77. Plaintiff realleges paragraphs one through seventy-six (1-76) as if fully restated

herein and further alleges the acts and conduct alleged herein were committed by Defendants,

individually and collectively, in violation of their legal duties to Plaintiff, and were committed

intentionally, deliberately, and/or recklessly and with wanton and careless disregard for

Plaintiffs legal rights.

78. As a direct and proximate result of Defendants' deliberate and/or reckless

misconduct, Plaintiff has suffered severe physical and emotional harm for which Plaintiff may

never recover.


expenses for necessary medical and rehabilitative services and will continue to incur such

expenses.

WHEREFORE, Plaintiff Rashoun Smith under all counts of the Complaint requests

Judgment for the following relief:

A. Grant injunctive and prospective relief ordering the City to require its officers to

undergo additional training, education, and supervision so that APD officers will be

better prepared to act in a reasonable manner and to better protect citizens it may

confront from the use of unlawful and excessive force and to discontinue future civil

rights and constitutional violations;

B. Award Plaintiff compensatory and punitive damages in excess of Twenty-five

Thousand Dollars ($25,000.00) on each of the above counts and/or in an amount to be

determined at trial plus interest at the highest rate allowed by law covering pre- and

post-Judgment interest;

13


C. Award Plaintiff his attorneys fees and costs to prosecute this action: and

D. Award such other and further relief as may be just and proper.

Respectfully submitted by:

BERNLOHR WERTZ, LLP

John C. Weisensell (0029901)

Michael J. Palumbo (0081718)

301 Nantucket Building

23 South Main Street

Akron, Ohio 44308-1822

Telephone: (330) 434-1000

Facsimile: (330)434-1001

E-Mails: [email protected]

[email protected]

Attorneys for Plaintiff

JURY DEMAND

Now comes Plaintiff, by and through his counsel, and pursuant to Civ. R. 38(B), Plaintiff

demands a trial by jury on all issues so triable.

Respectfully submitted by:

BERNLOHR WERTZ, LLP

John C. Weisensell (0029901)

Michael J. Palumbo (0081718)

301 Nantucket Building

23 South Main Street

Akron, Ohio 44308-1822

Telephone: (330) 434-1000

Facsimile: (330)434-1001

E-Mails: [email protected]

[email protected]

Attorneys for Plaintiff

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Case Details Page 1 of 1

Civil Case Information - -9/10/2009-

Last 5 or Less Dockets If Any

http://www.cpclerk.co.summit.oh.us/CaseDetails.asp?CaseID=CV2009086380&CT=C&S... 9/10/2009


case: 5:09-cv-02099-ddd doc #: 1-1 filed: 09/10/09 1 of 16 ...smith, rashoun 634 e buchtel ave apt...

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