Amended Lawsuit Complaint

Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 1 of 17 Page ID #:247
David E. Kenner, SBN 41425

Brett A. Greenfield, SBN 217343
KENNER & GREENFIELD
16633 Ventura Blvd., Suite 1212
Encino, California 91430
Telephone: (818) 995-1195
Facsimile: (818) 475-5369
E-mail: david@KennerGreenfield.com
brett@KennerGreenfield.com
Attorneys for Plaintiffs
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2
3
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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16
A.P. and I.P., by and through their

guardian ad litem Diana Perez, in
each case individually and as
successors in interest to Luis Morin
Jr., deceased; J.M. and E.M., by and
through their guardian ad litem
Fabiola Velasquez, in each case
individually and as successors in
interest to Luis Morin Jr., deceased;
MARIA GOMEZ; and LUIS
MORIN,
17
Plaintiffs,
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12
13
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THIRD AMENDED COMPLAINT

FOR DAMAGES FOR CIVIL
RIGHTS VIOLATIONS UNDER
COLOR OF STATE LAW [42 U.S.C.
1983] AND SUPPLEMENTAL
STATE LAW TORTS ARISING
FROM WRONGFUL POLICE
SHOOTING AND DENIAL OF
MEDICAL CARE
vs.
18
20
COUNTY OF RIVERSIDE, OSCAR

RODRIGUEZ, and DOES
2-10, inclusive,
21
Defendants.
19
Case no. CV 14-01793 VAP (DTBx)
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JURISDICTION AND VENUE

1.
This is a civil rights and wrongful death/survival action arising from
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the shooting death of the plaintiffs decedent, Luis Morin Jr. (the decedent),
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on January 27, 2014 in Coachella, California.

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2.
This case arises under 42 U.S.C. 1983. Jurisdiction is conferred
upon this Court by 28 U.S.C. 1331 and 1343. Supplemental jurisdiction
exists over plaintiffs state law claims under 28 U.S.C. 1367.
3.
In May 2014 plaintiffs duly served claims against defendants under
the appropriate California Government Code sections. On or about June 10,
2014 defendants denied those claims.
4.
Venue is proper under 28 U.S.C. 1391(b).
8
9
PARTIES
5.
Plaintiffs A.P. and I.P. are minors residing in the County of Riverside
10
who are the natural children of the decedent. These plaintiffs sue both
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individually, and as successors in interest to the decedent under Section 377.11
12
of the California Code of Civil Procedure, by and through their guardian ad
13
litem Diana Perez.
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6.
Plaintiffs J.M. and E.M. are minors residing in the County of
15
Riverside who are the natural children of the decedent. These plaintiffs sue both
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individually, and as successors in interest to the decedent under Section 377.11
17
of the California Code of Civil Procedure, by and through their guardian ad
18
litem Fabiola Velasquez.
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7.
Plaintiffs Maria Gomez and Luis Morin are individuals residing in
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the County of Riverside, California, who were the natural mother and natural
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father, respectively, of the decedent.
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8.
At all times herein mentioned defendant County of Riverside
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(County) was and is a local governmental entity duly organized and existing
24
under the laws of the State of California, the County of Riverside Sheriffs
25
Department (RSD) was and is an official Department of the County.
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9.
At all relevant times herein mentioned defendant Oscar Rodriguez
27
(Rodriguez) was a sworn deputy of the RSD. At all relevant times Rodriguez
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and Does 2 through 10, inclusive were individuals who were employees and/or
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agents of the County and/or the RSD, who were acting under color of the law,
statutes, ordinances, policies, practices, customs, and/or usages of defendant
County, and/or otherwise within the course and scope of their respective duties
as employees, and with the complete authority and ratification of, defendant
County Said defendants are each in some manner responsible for the injuries
and damages complained of herein. The true names of defendants Does 2
through 10, inclusive are presently unknown to plaintiffs, who therefore sue
each of these defendants by such fictitious name. Upon ascertaining the true
identity of a defendant Doe, plaintiffs will amend this complaint, or seek leave
10
to do so, by inserting the true name in lieu of the fictitious name.
11
10. Each defendant promoted, ratified, and approved the wrongful
12
conduct alleged herein of each of the other defendants, and acted in concert with
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and conspired with each of the other defendants, in doing the wrongful acts
14
complained of herein, as more fully alleged below.
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FACTS
11. At approximately 9:40 p.m. on the evening of January 27, 2014
17
plaintiff Maria Gomez and the decedent arrived in plaintiff Maria Gomezs car
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at her residence located at 48402 Camino Real in Coachella, having returned
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from a family birthday party at Tony Romas Restaurant.
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12. While plaintiff Maria Gomez parked her car in front of her residence
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the decedent left the vehicle and started walking backwards across the front
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lawn of the residence towards the front door of Marias house, while texting or
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otherwise using his cell phone.
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13. Defendant Rodriguez, who had secreted himself in the bushes
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located along the front of the residence, then, from the darkness, approached the
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decedent from behind and kicked him in the back of the knees in an attempt to
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seize and detain decedent, on information and belief, without probable cause.
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At no time during this assault did defendant Rodriguez identify himself as a

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police officer, although he was a sworn Deputy of the RSD. The decedent then
managed to briefly get away from defendant Rodriguez, walked towards the
driveway of the residence and then fell down. Defendant Rodriguez then got on
top of the decedent and put him in a body restraint. Defendant Rodriguez then
pulled out his gun. At this point plaintiff Maria Gomez, who was watching,
yelled dont hurt him. In response defendant Rodriguez pointed his gun at her.
The decedent pleaded with defendant Rodriguez to let go of me! At this point
the gun of defendant Rodriguez discharged and at least one bullet entered the
decedents body. The decedent then asked defendant Rodriguez Why did you
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shoot me?
14. As other family members and neighbors showed up at the scene
defendant Rodriguez pointed his gun at some of them as well.
15. After being shot the decedent was immobile, bleeding profusely and
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in obvious and critical need for medical care and treatment. Defendant
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Rodriguez did not timely summon emergency medical care or permit emergency
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medical personnel to treat the decedent. Defendant Rodriguez announced he
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could not call for an ambulance until he had backup. This delay of medical care
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directly caused the decedent extreme physical and emotional pain and suffering,
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and was a substantial contributing cause of the decedents death.
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16. Other RSD Deputies eventually arrived, who put plaintiff Maria
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Gomez in a patrol car for approximately two hours, without cause or
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justification.
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17. Emergency medical personnel eventually arrived and attempted to
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administer medical care to the decedent, but to no avail. The decedent expired
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on the front lawn of the residence at approximately 10:07 p.m. His body
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remained on the front lawn of the residence until personnel from the RSDs
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Coroner division arrived at the scene at approximately 6:00 a.m. the following
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morning.
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18. The force defendant Rodriguez used was without provocation,
necessity, or justification. The decedent was unarmed, had not threatened
defendant Rodriguez, and did not pose a threat of death or serious physical
injury to defendant Rodriguez, or to any other person. Defendant Rodriguez
used unreasonable, unnecessary and excessive force in shooting the decedent.
19. Defendant Rodriguezs use of force, and his failure to timely
summon medical care, caused the decedent serious physical injury and
protracted pain and suffering before his demise.
FIRST CLAIM FOR RELIEF UNDER 42 U.S.C. 1983
10
FOR UNLAWFUL SEIZURE AND EXCESSIVE FORCE
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(By plaintiffs A.P., I.P., J.M. and E.M. as successors in interest against
12
defendant Rodriguez)
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20. Plaintiffs repeat and reallege and incorporate by reference each and
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every allegation in paragraphs 1 through 19, inclusive, of this complaint as if
15
fully set forth herein.
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21. Plaintiffs bring this claim for relief in their capacity as the successors
17
in interest of the decedent, for whom there is no estate opened, under California
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Code of Civil Procedure 377.30. The foregoing claim for relief arose in the
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decedents favor, and decedent would have been the plaintiff with respect to this
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claim for relief had he lived.
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22. The arrest of plaintiff, as above alleged was without probable cause,
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and the use of the aforesaid force against the decedent was excessive and
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unreasonable, thereby depriving decedent of his right to be secure in his person
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against unreasonable seizures guaranteed him by the Fourth Amendment to the
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U.S. Constitution, as applied to the states by the Fourteenth Amendment, in
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violation of 42 U.S.C. 1983.
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23. As a direct result thereof the aforesaid acts and omissions of

defendant Rodriguez the decedent suffered great physical and mental injury, fear
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and emotional distress, trauma, pain, shock to his nervous system, injury to his
health, strength and activity, and ultimately death, and the loss of the enjoyment
of life and earning capacity, in an amount according to proof.
24. The conduct of defendant Rodriguez alleged above was willful,
wanton, malicious, and done with reckless disregard for the rights and safety of
decedent and therefore warrants the imposition of exemplary damages in an
amount according to proof sufficient to punish and make an example.
SECOND CLAIM FOR WRONGFUL DEATH
(By A.P., I.P., J.M., E.M., MARIA GOMEZ and LUIS MORIN individually
10
against defendants Rodriguez, Does 2-6 and County of Riverside)
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25. Plaintiffs repeat and reallege and hereby incorporate by reference
12
each and every allegation contained in paragraphs 1 through 19, 31-32, 50-52
13
and 56-60 of this complaint as if set forth herein in full.
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26. Plaintiffs A.P., I.P., J.M. and E.M. are proper parties with standing,
15
pursuant to Cal. Civ. Proc. Code 377.60(a), to pursue this wrongful death
16
claim.
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27. Plaintiffs Maria Gomez and Luis Morin are likewise proper parties
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with standing, pursuant to Cal. Civ. Proc. Code 377.60(b), to pursue this
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wrongful death claim.
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28. As a direct result of the acts of defendants alleged above plaintiffs
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have been damaged, suffering pecuniary loss and other compensable injuries
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resulting from loss of love, society, comfort, attention, services, and support of
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the decedent, in an amount in accordance with proof.
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29. As a further direct result of the acts of defendants, plaintiffs have
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incurred expenses, including funeral and burial expenses, in an amount
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according to proof.
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THIRD CLAIM FOR RELIEF FOR UNDER 42 U.S.C. 1983 FOR
DEPRIVATION OF THE SUBSTANTIVE DUE PROCESS RIGHTS OF THE
DECEDENT
defendants Rodriguez and Does 2-6)
each and every allegation contained in paragraphs 1 through 24, inclusive of this
complaint as if set forth herein in full.
31. The decedent had a cognizable right and interest under the Due
10
Process Clause of the Fourteenth Amendment of the United States Constitution
11
in being free from state actions that deprived him of life, liberty, or property in
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such a manner as to shock the conscience, including but not limited to,
13
unwarranted state interference with his access to emergency medical care. On
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information and belief, defendants Rodriguez and Does 2-6, inclusive,
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intentionally and/or with deliberate or reckless indifference to the critical need
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of the decedent for emergency medical care interfered with said right and
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interest. Said actions shock the conscience and were unrelated to any legitimate
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law enforcement objective.
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32. As a direct result thereof the aforesaid acts and omissions of
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defendants Rodriguez and Does 2-6, inclusive the decedent suffered great
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physical and mental injury, fear and emotional distress, trauma, pain, shock to
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his nervous system, injury to his health, strength and activity, and ultimately
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death, loss of the enjoyment of life and earning capacity, in an amount according
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to proof.
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33. The conduct of defendants Rodriguez and Does 2-6, inclusive as
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alleged above was willful, wanton, malicious, and done with reckless disregard
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for the rights and safety of decedent and therefore warrants the imposition of
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exemplary damages in an amount according to proof sufficient to punish and
make an example.
FOURTH CLAIM FOR RELIEF UNDER 42 U.S.C. 1983 FOR
DEPRIVATION OF THE SUBSTANTIVE DUE PROCESS RIGHTS OF
PLAINTIFFS TO FAMILIAL RELATIONSHIPS WITH THE DECEDENT
(By all plaintiffs against defendants Rodriguez and Does 2-6, inclusive)
each and every allegation contained in paragraphs 1 through 19, inclusive and
31 of this complaint as if set forth herein in full.
10
35. Plaintiffs had a cognizable interest under the Due Process Clause of
11
the Fourteenth Amendment of the United States Constitution in being free from
12
state actions that deprive them of life, liberty, or property in such a manner as to
13
shock the conscience, including but not limited to, unwarranted state
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interference with their familial relationship with the decedent, who was either
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their father or their son.
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36. The use of force against decedent by defendant Rodriguez, acting
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under color of law, and, on information and belief, the interference with
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decedents access to emergency medical care by defendants Rodriguez and Does
19
2-6, as alleged above, shock the conscience, were unrelated to any legitimate
20
law enforcement objective, were done with the intent to harm the decedent and
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the plaintiffs, and were otherwise done in conscious and/or reckless disregard of
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the rights of plaintiffs herein.
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37. Said acts deprived plaintiffs of their substantive due process rights
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not to have their familial association infringed upon or interfered with in an
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unwarranted manner, or to be deprived by the loss of life of their father or son,
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thereby depriving them of rights, privileges, and immunities under the U.S.
27
Constitution, in violation of Title 42 U.S.C. 1983.
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38. As a direct result of the aforesaid acts of said defendants plaintiffs
have suffered and will suffer great physical and mental injury, trauma, pain,
shock to their nervous system, anguish, anxiety, humiliation, fear and emotional
distress, and the loss of the love, care, society, companionship, and support and
affection of their loved one, all to their damage in an amount according to proof.
39. By reason of the aforesaid acts of defendants plaintiffs have required
or will in the future be required to receive hospital, medical, doctor, nursing, and
psychological care and treatment, and by reason thereof, will incur expenses
related thereto in an amount to be proven at trial.
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40. As a further direct result of defendants acts plaintiffs incurred

funeral and burial expenses, in an amount according to proof.
41. The conduct of defendants Rodriguez and Does 2-6, inclusive as
13
alleged above was willful, wanton, malicious, and done with reckless disregard
14
for the rights and safety of decedent and plaintiffs and therefore warrants the
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imposition of exemplary damages in an amount according to proof sufficient to
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punish and make an example.
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FIFTH CLAIM FOR RELIEF UNDER 42 U.S.C. 1983
18
FOR MUNICIPAL LIABILITY
19
(By plaintiffs A.P., I.P., J.M. and E.M. as successors in interest to decedent and
20
all plaintiffs individually against defendant County of Riverside)
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42. Plaintiffs hereby repeat and reallege and each and every allegation
22
contained in paragraphs 1 through 29, 31-32 and 35-40 of this complaint as if set
23
forth herein in full.
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43. Plaintiffs A.P., I.P., J.M. and E.M. sue under this claim as survivors
25
in interest of decedent. In addition, all plaintiffs sue individually in connection
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with the violation of their own rights under the United States Constitution, as
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alleged above in the Third Claim for Relief.
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44. On information and belief, a final policymaker, acting under color of
law, who had final policymaking authority concerning the acts of defendant
Rodriguez and Does 2-6 ratified (or will ratify) said acts and the purported bases
for them. Upon information and belief, the final policymaker knew of and
specifically approved of (or will specifically approve of) the acts of defendant
Rodriguez and Does 2-6.
45.
Alternatively, on information and belief, defendant County through
its agents was deliberately indifferent to the rights and safety of individuals by
its failure to institute, maintain and enforce appropriate policies regarding proper
10
tactics and practices for dealing with recurring situations as to individuals,
11
including the proper use of deadly force, and for provision of emergency
12
medical care, its failure to properly train, instruct, monitor, supervise, and
13
discipline the individual defendants herein with respect thereto.
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46.
The aforementioned policies, practices and customs of defendant
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County, as well as its failure to properly and adequately train, instruct, monitor,
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supervise, and discipline, were a moving force and direct cause of the
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deprivations of decedents and plaintiffs clearly established and well-settled
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constitutional rights, in violation of 42 U.S.C. 1983.
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47. As a direct result of the actions alleged herein, decedent was

damaged, as alleged above, and plaintiffs were damaged, as alleged above.
21
SIXTH CLAIM FOR RELIEF FOR BATTERY
22
23
defendants Rodriguez and County of Riverside)
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48.
Plaintiffs repeat and reallege and hereby incorporate by reference
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each and every allegation contained in paragraphs 1 through 24 of this complaint
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as if set forth herein in full.
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49.
Plaintiffs sue under this claim in their capacities as successors in
interest of decedent.
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50.
As is detailed above, defendant Rodriguez intentionally shot at the
decedent, striking him and ultimately killing him. These acts resulted in
nonconsensual, offensive contact with the decedents person. Defendant
Rodriguez had no legal justification for using said force against decedent, and
the use of force by said defendant acting as sworn officer of defendant County
was an unreasonable use of force.
51.
As a direct, legal and proximate result of the actions of defendant
Rodriguez decedent suffered economic damages and lost his earning capacity,
and was otherwise injured and suffered damages.
10
52.
Defendant County is vicariously liable for the wrongful acts of
11
defendant Rodriguez pursuant to section 815.2(a) of the California Government
12
Code, which provides that a public entity is liable for the injuries caused by its
13
employees within the scope of the employment if the employees act would
14
subject him or her to liability.
15
53.
The conduct of defendant Rodriguez as alleged above was willful,
16
17
decedent and therefore warrants the imposition of exemplary damages in an
18
amount according to proof sufficient to punish and make an example of said
19
defendant.
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SEVENTH CLAIM FOR RELIEF FOR NEGLIGENCE
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(By plaintiffs A.P., I.P., J.M. and E.M. individually and as successors in interest
22
against defendants Rodriguez and County of Riverside)
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54.
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55.
Plaintiffs sue under this claim in both their individual capacities
and as successors in interest to decedent.
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56.
In their contacts with the decedent defendants Rodriguez and Does
2-6, inclusive were required to use reasonable care in seizing the decedent,
taking him into custody and rendering or obtaining emergency medical care for
him.
57.
On January 27, 2014 defendant Rodriguez failed to use appropriate
tactics or reasonable care in seizing and shooting the decedent, by, among other
things, sneaking up behind the decedent in the dark, failing to identify himself,
failing to give a warning, and failing to use other appropriate less lethal tactics
than pulling out his gun and discharging it. The conduct of defendant Rodriguez
10
in that regard fell below the standard of care of reasonable persons in his
11
profession, such that defendant Rodriguez was negligent in the performance of
12
his police tactics and duties.
13
58.
Further, on information and belief, in failing to timely render or
14
summon emergency care for the decedent defendants Rodriguez and Does 2-6,
15
inclusive failed exercise the standard of care of reasonable persons in their
16
professions, such that defendants Rodriguez and Doe 2-6, inclusive were
17
negligent in the performance of their police duties.
18
59.
As a direct, legal and proximate result of the aforesaid negligence
19
of defendants Rodriguez and Does 2-6, inclusive the decedent and plaintiffs
20
were damaged as alleged above.
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60.
Defendant County is vicariously liable for the negligence of
22
defendants Rodriguez and Does 2-6, inclusive, pursuant to section 815.2(a) of
23
the California Government Code.
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EIGHTH CLAIM FOR RELIEF UNDER CAL. CIV. CODE 52.1
(By plaintiffs A.P., I.P., J.M. and E.M. as successors in interest to decedent and
by plaintiff Maria Gomez individually against
defendants Rodriguez, Does 2-6 and County of Riverside)
61.
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62.
Plaintiffs A.P., I.P., J.M. and E.M. sue under this claim as
successors in interest to decedent, and plaintiff Maria Gomez sues individually.

63.
In violation of California Civil Code section 52.1 defendants
11
Rodriguez and Does 2-6 interfered by violence, threats of violence, intimidation,
12
or coercion, with the exercise or enjoyment of the constitutional or statutory
13
rights of decedent, and of plaintiff Maria Gomez individually, which rights
14
included, but are not limited to: the right of decedent to be free from unlawful
15
seizures and excessive and unreasonable force in violation of his rights protected
16
under Article 1, Sections 7 and 13 of the California Constitution as well as the
17
Fourth Amendment of the United States Constitution; the right of plaintiff Maria
18
Gomez to be free of unreasonable and unlawful seizures, detentions and arrests;
19
the rights of plaintiff Maria Gomez under Article 1, Section 7 of the California
20
Constitution and the Due Process Clause of the Fourteenth Amendment to the
21
United States Constitution to be free from interference with her familial
22
association with the decedent.
23
64.
As a direct, legal and proximate result of the aforesaid violations of
24
California Civil Code section 52.1 by defendants decedent was injured and
25
damaged as alleged above, entitling plaintiffs A.P., I.P., J.M. and E.M. to
26
recover survival damages on his behalf, and plaintiff Maria Gomez suffered
27
severe pain and emotional distress, and has been deprived of the life-long love,
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companionship, comfort, support, society, care and sustenance of decedent, and
was otherwise damaged as alleged above.
65.
defendants Rodriguez and Does 2-6 pursuant to section 815.2(a) of the
California Government Code, which provides that a public entity is liable for the
injuries caused by its employees within the scope of the employment if the
employees act would subject him or her to liability.
66.
The conduct of defendants Rodriguez and Does 2-6 as alleged
above were willful, wanton, malicious, and done with reckless disregard for the
10
rights and safety of decedent and of plaintiff Maria Gomez, thereby warranting
11
the imposition of exemplary damages in an amount according to proof sufficient
12
to punish and make an example of said defendants.
13
NINTH CLAIM FOR RELIEF UNDER 42 U.S.C. 1983
14
FOR WRONGFUL ARREST AND/OR DETENTION
15
(By plaintiff Maria Gomez against defendants Rodriguez and Does 2-6)
16
67.
Plaintiff Maria Gomez repeats and realleges and hereby incorporate
17
by reference each and every allegation contained in paragraphs 1 through 19 of
18
this complaint as if set forth herein in full.
19
68.
Plaintiff Maria Gomez was wrongfully arrested and/or detained by
20
defendants Rodriguez and/or Does 2-6 for a lengthy period of time in a patrol
21
car just after witnessing the unjustified shooting of her son, in violation of her
22
rights under the Fourth Amendment, as incorporated into the Fourteenth
23
Amendment.
24
25
69.
As a direct result thereof plaintiff Maria Gomez suffered pain and
emotional distress, among other damages.
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TENTH CLAIM FOR RELIEF
FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(By plaintiff Maria Gomez against defendants Rodriguez and County of
Riverside)
70.
by reference each and every allegation contained in paragraphs 1 through 19 of
this complaint as if set forth herein in full.
8
9
71.
Defendant Rodriguez was aware of the presence of plaintiff Maria
Gomez at the time he shot her son the decedent and even pointed his gun at her.
10
By pointing his gun at her and shooting her son in her presence, despite the
11
absence of any threat to himself or any other person, defendant Rodriguez
12
engaged in extreme and outrageous conduct by with the intention of causing, or
13
reckless disregard of the probability of causing, emotional distress to plaintiff.
14
15
16
72.
As an actual and direct result of said conduct defendant Rogriguez
caused plaintiff to suffer severe emotional distress.

73.
17
defendant Rodriguez pursuant to section 815.2(a) of the California Government
18
19
20
21
74.
The conduct of defendant Rodriguez as alleged above was willful,
22
23
plaintiff and therefore warrants the imposition of exemplary damages in an
24
amount according to proof sufficient to punish and make an example of said
25
defendant.
26
27
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ELEVENTH CLAIM FOR RELIEF
FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(By plaintiff Maria Gomez against defendants Rodriguez, Does 2-6
and County of Riverside)
75.
by reference each and every allegation contained in paragraphs 1 through 19 and
56-58 of this complaint as if set forth herein in full.
8
9
76.
Defendant Rodriguezs shooting of plaintiffs decedent and, on
information and belief, his failure and that of defendants Does 2-6s to obtain or
10
render timely and prompt medical aid and treatment to decedent, fell was
11
negligent.
12
77.
13
14
As an actual and direct result of said conduct defendants caused
plaintiff to suffer pain and emotional distress, and other damages.

78.
15
defendants Doe 1-6 pursuant to section 815.2(a) of the California Government
16
17
18
19
20
21
PRAYER
WHEREFORE, plaintiffs pray for judgment against defendants, and each
of them, as follows:
22
As to all Claims for Relief
23
1.
24
including both survival damages and wrongful death damages under
25
federal and state law where warranted, in amounts to be proven at trial;
26
2.
For costs of suit necessarily incurred;
27
3.
For such other and further relief as this Court deems just and
28
proper.
For compensatory, general, special and incidental damages,
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As to the First, Second, Third, Fourth, Fifth, Eighth and Ninth Claims for
Relief
4.
As to the First, Third, Fourth, Sixth, Eighth and Tenth Claims for Relief
5.
amount sufficient to punish defendants and make an example;
For reasonable attorneys fees and expenses of litigation.

For punitive and exemplary damages against defendant(s) in an
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Dated: March 16, 2015
KENNNER & GREENFIELD

By ____/s/_________________________
David E. Kenner
Attorneys for Plaintiffs
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Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 1 of 17 Page ID #:247

David E. Kenner, SBN 41425

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

A.P. and I.P., by and through their

THIRD AMENDED COMPLAINT

COUNTY OF RIVERSIDE, OSCAR

Case no. CV 14-01793 VAP (DTBx)

JURISDICTION AND VENUE

This is a civil rights and wrongful death/survival action arising from

on January 27, 2014 in Coachella, California.

Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 2 of 17 Page ID #:248

This case arises under 42 U.S.C. 1983. Jurisdiction is conferred

upon this Court by 28 U.S.C. 1331 and 1343. Supplemental jurisdiction

exists over plaintiffs state law claims under 28 U.S.C. 1367.

In May 2014 plaintiffs duly served claims against defendants under

the appropriate California Government Code sections. On or about June 10,

2014 defendants denied those claims.

Venue is proper under 28 U.S.C. 1391(b).

individually, and as successors in interest to the decedent under Section 377.11

of the California Code of Civil Procedure, by and through their guardian ad

litem Diana Perez.

Plaintiffs J.M. and E.M. are minors residing in the County of

individually, and as successors in interest to the decedent under Section 377.11

of the California Code of Civil Procedure, by and through their guardian ad

litem Fabiola Velasquez.

Plaintiffs Maria Gomez and Luis Morin are individuals residing in

father, respectively, of the decedent.

At all times herein mentioned defendant County of Riverside

Department (RSD) was and is an official Department of the County.

At all relevant times herein mentioned defendant Oscar Rodriguez

Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 3 of 17 Page ID #:249

statutes, ordinances, policies, practices, customs, and/or usages of defendant

and damages complained of herein. The true names of defendants Does 2

to do so, by inserting the true name in lieu of the fictitious name.

10. Each defendant promoted, ratified, and approved the wrongful

complained of herein, as more fully alleged below.

at her residence located at 48402 Camino Real in Coachella, having returned

from a family birthday party at Tony Romas Restaurant.

otherwise using his cell phone.

13. Defendant Rodriguez, who had secreted himself in the bushes

At no time during this assault did defendant Rodriguez identify himself as a

Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 4 of 17 Page ID #:250

medical personnel to treat the decedent. Defendant Rodriguez announced he

and was a substantial contributing cause of the decedents death.

Gomez in a patrol car for approximately two hours, without cause or

17. Emergency medical personnel eventually arrived and attempted to

Case 5:14-cv-01793-VAP-DTB Document 46 Filed 03/16/15 Page 5 of 17 Page ID #:251

18. The force defendant Rodriguez used was without provocation,

necessity, or justification. The decedent was unarmed, had not threatened

injury to defendant Rodriguez, or to any other person. Defendant Rodriguez

used unreasonable, unnecessary and excessive force in shooting the decedent.

19. Defendant Rodriguezs use of force, and his failure to timely

protracted pain and suffering before his demise.

FIRST CLAIM FOR RELIEF UNDER 42 U.S.C. 1983

FOR UNLAWFUL SEIZURE AND EXCESSIVE FORCE

every allegation in paragraphs 1 through 19, inclusive, of this complaint as if

fully set forth herein.

claim for relief had he lived.

unreasonable, thereby depriving decedent of his right to be secure in his person

against unreasonable seizures guaranteed him by the Fourth Amendment to the

U.S. Constitution, as applied to the states by the Fourteenth Amendment, in

violation of 42 U.S.C. 1983.