Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 1 of 25

1 TERRI KEYSER-COOPER
Law Office of Terri Keyser-Cooper
2 Nevada Bar No. 3984
3590 Barrymore Dr.
3
Reno, NV 89512
4 (775) 337-0323
keysercooper@lawyer.com
5
LUKE A. BUSBY
6 Luke Andrew Busby, Ltd.
Nevada Bar No. 10319
7
216 East Liberty St.
8 Reno, NV 89501
(775) 453-0112
9 luke@lukeandrewbusbyltd.com
10 Attorneys for Plaintiff
11

12
UNITED STATES DISTRICT COURT
13
DISTRICT OF NEVADA
14
N.S., a minor, by and through his guardian
15
ad Litem, Jillian Cortez and Romeo Smith, as
16 Special Administrator of the Estate of Niko
Larome Smith, Case No. 3:17-cv-133
17
Plaintiff(s),
18 vs. COMPLAINT
19
WASHOE COUNTY DEPUTY X, WASHOE
20 COUNTY DEPUTY Y, and WASHOE COUNTY JURY DEMAND
SERGEANT COREY A. SOLFERINO,
21
Defendants.
22 __________________________________________/
23
JURISDICTION AND VENUE
24
1. This action arises under Title 42 of the United States Code (U.S.C.), 28 U.S.C.
25
Sections 1983 and 1988. Jurisdiction is conferred upon this Court by Title 28 of the United States
26

27 Code, Sections 1331, 1343 and 42 U.S.C. Section 12188(a). This Court also has supplemental

28

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1 jurisdiction over Plaintiffs state law causes of action under 28 U.S.C. Section 1367.

2 2. Venue in this action is appropriate in the Northern District of Nevada pursuant to 28

3
U.S.C. Section 1391(b) because the unlawful acts and practices alleged herein occurred in Northern
4
Nevada, which is within this judicial district.
5
3. This Court has jurisdiction to grant the declaratory relief requested pursuant to 28
6
U.S.C. Section 2201 and Federal Rules of Civil Procedure (FRCP), Rule 57.
7
8 PARTIES

9 4. Plaintiff N.S. is the minor son of decedent NICO LAROME SMITH (SMITH).
10 Plaintiff is represented in this action by his mother and Guardian ad Litum, Jillian CORTEZ.
11
Plaintiff is a citizen of the United States residing in the County of Washoe in Nevada. N.S. is the
12
successor-in-interest to decedent SMITH pursuant to NRS 134.030 et seq.1
13
5. Plaintiff Romeo Smith is the brother of decedent SMITH and the Special
14
15 Administrator of the Estate of decedent SMITH.

16 6. Plaintiff is at the time of the filing of this Complaint, ignorant of the true names and

17 capacities of Defendants X and Y (hereinafter referred to as X and Y) and, therefore sue these
18 Defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that
19
Defendants X and Y were employed by the Washoe County Sheriffs Office (WCSO) as Deputies
20
at the time of the conduct alleged herein. Plaintiff alleges Defendants X and Y, and each of them,
21
violated decedent SMITHs civil rights by using excessive force upon SMITH and causing his
22
23 death. Further, Defendants X and Y were deliberately indifferent to decedent SMITHs medical and

24 mental health needs and to his safety and failed to provide the urgent mental and psychiatric care

25 SMITH required to prevent his death, thereby causing SMITHs death. Defendants and/or
26
encouraged, directed, enabled and/or ordered other defendants to engage in such conduct. Plaintiff
27
1
28 On February 23, 2017, the Second Judicial District Court for the State of Nevada granted
the petition of decedent Smiths brother, Romeo Smith, to serve as Special Administrator for the
Smiths estate in Docket No. PR17-00074 pursuant to the provision of NRS Chapter 140.
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1 further alleges that Defendants X and Y violated Plaintiffs Fourteenth Amendment rights to

2 familial association and companionship, which is predicated on their deliberate indifference and
3
excessive force in causing the death of the Smith. Plaintiff will amend his complaint to state the
4
names and capacities of Defendants X and Y, inclusive, when they are ascertained.
5
7. Defendant COREY A. SOLFERINO, (SOLFERINO) was employed by the WCSO
6
as a Sergeant at the time of the conduct alleged herein. SOLFERINO, as a supervisor, directed
7
8 subordinates Defendants X and Y in the acts that deprived decedent SMITH of his particular rights

9 and caused Smiths death. SOLFERINO set in motion a series of acts by X and Y, or knowingly
10 refused to terminate a series of acts by X and Y that he knew, or reasonably should have known,
11
would cause the death of SMITH. Further, SOLFERINO disregarded the known or obvious
12
consequence that a particular training deficiency or omission would cause his subordinates, X and
13
Y, to violate SMITHs constitutional rights; and, that deficiency or omission actually caused his
14
15 subordinates X and Y to deprive SMITH of his constitutional rights. SOLFERINOs conduct was so

16 closely related to the deprivation of the decedent SMITHs rights to be free from deliberate

17 indifference to his serious medical needs and from excessive force as to be the moving force that
18 caused the death of SMITH.
19
8. Each Defendant was acting under the color of law of the United States and State of
20
Nevada which rights include, but are not limited to, privileges and immunities secured to Plaintiff
21
by the Constitution and laws of the United States.
22
23 9. Each Defendant is sued in their individual capacity.

24 10. Plaintiff alleges that the conduct of each Defendant deprived SMITH of his

25 constitutional right to be free from excessive force and to his constitutional right to adequate
26
medical and mental health care for his serious but treatable medical and mental health needs. Such
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1 conduct caused SMITH to suffer serious grievous harm and physical injuries prior to his death and

2 ultimately caused his death.

3
11. Each of the Defendants caused, and is responsible for, the unlawful conduct and
4
resulting harm by, inter alia, personally participating in the conduct, or acting jointly and in concert
5
with others who did so, by authorizing acquiescing, condoning, and approving unconstitutional
6
conduct and or omitting or failing to take action to prevent the unconstitutional conductall of
7
8 which resulted in SMITHs death.

9 12. Whenever and wherever reference is made in this Complaint to any act by
10 Defendants, each Defendant was the agent of the others, each Defendant was acting within the
11
course and scope of this agency, and all acts alleged to have been committed by any one of them
12
shall also be deemed to mean the acts and failures to act of each Defendant individually, jointly or
13
severally.
14
15 FACTUAL ALLEGATIONS

16 13. Decedent SMITH, age 31, was a healthy, athletic, fit young man who led a short and

17 tragic life. A sporadic warehouseman and laborer, SMITH had significant unrealized potential.
18 Unfortunately, SMITHs life was characterized by bouts of mental illness and an inability to avoid
19
harmful addictive substances. Yet SMITHs death was caused exclusively by Defendants conduct
20
and absent Defendants conduct SMITH would be alive today. If Defendants, and each of them, had
21
read, understood, and followed WCSO policies, as their duty, SMITH would be alive today.
22
23 14. WCSO Deputy Stefanie Bradys report dated September 10, 2015 demonstrates

24 SMITHs extreme delusional and paranoid conduct in the hours immediately prior to his arrival at

25 the jail on at 12:45 p.m. on August 26, 2015:

26
At approximately 8:00 a.m. to 8:30 a.m., Deborah Antzoulatous (Antzoulatous), a
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1 Washoe County school bus driver, was flagged down by SMITH, who stated his life

2 had been threatened and he had barely made it out alive. Antzoulatous asked if
3
SMITH wanted her to call the police and SMITH stated, Please. Antzoulatous did
4
not believe SMITH to be high but noted he did seem afraid.
5
At approximately 8:30 to 9:00 a.m., Jacki Hallerback (Hallerback), was flagged
6
7 down by SMITH, who asked to use her phone. SMITH told Hallerback that he was

8 involved in an incident at a nearby park and thought his cousin or brother may have

9 been shot. Hallerback wanted to call the police but SMITH pleaded for her not to
10 call the police and to just stay with him for a little while because he was scared and
11
didnt know what to do. Hallerback agreed to drive SMITH to the park. While
12
driving, Hallerback allowed SMITH to make a call on her phone and heard him
13
telling someone that his girlfriend was yelling shoot him, shoot him! SMITH also
14
15 said something about the number 21 indicating the amount of people who were

16 dead. Hallerback noted that SMITH seemed really scared.

17 At approximately 9:10 a.m., Sarah Pomposello (Pomposello) arrived at the Mira

18
Loma Shopping Center and saw SMITH, who asked to use her cell phone.
19
Pomposello observed SMITH appeared distressed and not right in the head.
20
Pomposello made a telephone call for SMITH and spoke to Nanette Arnold telling
21
22 her that SMITH was confused and paranoid and scared. Pomposello noted SMITH

23 was wobbly on his feet and believed he might be having a panic attack. SMITH

24 began rambling to Pomposello about someone poisoning him with a Reeses peanut
25 butter cup.
26
At approximately 10:00 a.m., SMITH arrived at EZ Credit Bail Bonds holding a
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1 white towel and using the towel to wipe his bloody nose and mouth as well as to spit

2 blood into. Travis Moore (Moore), the owner of EZ Credit Bail Bonds, arranged
3
for SMITH to post bail four days earlier, on August 22, 2015. SMITH told Moore of
4
being at a park arguing with his girlfriend Nicolle when two guys walked up and
5
Nicolle yelled: Shoot him! Shoot him! SMITH told Moore that he was beat up
6
by the two guys and also explained Nicolle had tried to poison him with a peanut
7
8 butter cup that had rocks in it. SMITH also complained of severe stomach cramps

9 and stated he was bleeding internally and wanted to die. Moore, believing
10 SMITH to be delusional and fearful, called 911.
11
Moore further noted when officers and paramedics arrived at EZ Credit Bail Bonds
12
SMITH freaked the hell out. As the officers approached SMITH, Moore said
13
SMITH did not want to be handcuffed because he thinks youre going to kill him.
14
15 Moore stated SMITH pleaded with him not to let the officer kill him. Theyre gonna

16 kill me. Dont let them kill me! Moore also indicated SMITH urinated on himself.

17 While at EZ Credit, the paramedics checked SMITHs blood pressure, noting it was
18
very high. SMITH was taken to Renown Hospital for the high blood pressure.
19
While at Renown, SMITH repeatedly asked the deputies if they were going to kill
20
him.
21
22 15. Smith was arrested by Reno Police Department Officers at EZ Credit and transported

23 to Renown Regional Medical center on Mill St. in Reno, Nevada by REMSA. After being

24 medically cleared at Renown, SMITH was taken to the Washoe County Jail arriving at
25 approximately 12:45 p.m.
26
16. Upon arrival at the Washoe County Jail, WCSO intake deputies noted SMITH had
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1 urinated on himself, appeared to be under the influence of a controlled substance, was acting

2 paranoid, and could not answer questions. SMITH admitted to taking methamphetamine and
3
molly, a slang term for Ecstasy. SMITH interacted with deputies at intake in a paranoid and
4
delusional manner, making clear his urgent need for medical and mental health evaluation. Because
5
SMITH was behaving in an erratic and delusional manner and could not respond to questions,
6
medical intervention was delayed and SMITH was ordered to be placed in Security Cell 2, where he
7
8 could be observed.

9 WCSO Deputy Jeremy Backman (Backman), who was familiar with SMITH from
10 prior incarcerations, noted at intake SMITH was not acting the way he normally
11
does, was acting paranoid and delusional and making statements that they were
12
coming to kill him.
13
WCSO Deputy Kerry Christy (Christy) heard SMITH ask if she was okay,
14
15 stating, He didnt mean to kill her. Christy also heard SMITH ask others, Dont

16 kill me.
17 While Backman and Christy escorted SMITH to Security Cell 2, SMITH again
18
urinated on himself.
19
17. WCSO Policy 720.152 states all inmates will be checked upon arrival at the facility.
20
However, the same Policy states the medical screening process will be delayed if the inmate is
21
22 combative, uncooperative or unable to effectively answer questions due to intoxication.

23 Accordingly, because SMITH was unable to respond to questions, SMITH did not receive a medical

24 or mental health screening. This mandatory exception to the Countys normal medical screening
25 procedure poses a substantial risk of serious harm to those with certain mental illnesses.
26
18. At the time of SMITHs arrival at the Jail, he had an urgent medical need requiring
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1 immediate medical screening. However, because of WCSO Policy 720.152, inmate medical

2 screeners were unreasonably not required to evaluate SMITH. As a result, SMITHs serious medical
3
needs went untreated and SMITH was jailed rather than hospitalized. WCSO Policy 720.152 allows
4
delay of medical treatment to inmates who cannot respond to questions. Policy 720.152 runs
5
counter and in direct contradiction with WCSO policies, including WCSO Policy No. 418.1 et seq,
6
mandating early identification of inmates with serious mental illness. Such inmates are to be
7
8 provided with an expedited referral by a nurse to the mental health staff for further evaluation, crisis

9 services, psychiatric consultation, special housing, and/or full mental health evaluation and suicide
10 watch.
11
19. At approximately 1:30 p.m., SMITH was given clean clothes and placed in Security
12
Cell 2, a special cell with a camera, for observation, without first being evaluate by medical staff at
13
Washoe County Jail. WCSO Policy 701.033 states, If the Security Cells are used for an inmate
14
15 whose conduct constitutes a threat to themselves, the inmate will be evaluated by medical staff

16 prior to being placed in the cell. SMITH was placed in just such a cell and specifically required

17 by WCSO Policy to be medically evaluated prior to placement in the cell.

18 20. While in Security Cell 2, SMITH was monitored by Deputy Wesley Walker
19
(Walker). Walker observed SMITHs erratic, agitated conduct over the next several hours.
20
Walker saw SMITH take off his jail issue shirt and socks and pace around his cell continuously.
21
SMITH did not sit down and did not rest. Ever. For almost 12 hours SMITH continuously paced
22
23 and moved: Sitting and kneeling on the floor, rocking back and forth, talking incoherently and

24 dunking his head in the toilet. Walker reported that SMITH appeared alternatively aggressive and

25 would cower in fear, talking to the walls and to the camera in his cell. SMITH would also stand on
26
his toilet and sink. Despite observing this behavior, Walker did not alert medical staff to evaluate
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1 SMITH.

2 21. SOLFERINO also observed SMITH in Security Cell 2 throughout the evening.
3
SOLFERINO reported hearing SMITH talking to himself, staring at the walls, speaking to the video
4
camera, and asking unintelligible questions. SOLFERINO did not alert medical staff to evaluate
5
SMITH.
6
22. On August 27, 2015, at approximately 1:00 a.m., Walker, finally alarmed at
7
8 SMITHs continued agitated state, instructed deputies to escort SMITH to Holding Cell 11.

9 23. At the time Walker called for SMITH to be taken to Holding Cell 11, deputies had
10 observed SMITH in Security Cell 2 for more than twelve hours. These deputies were on notice of
11
SMITHs urgent need for medical and mental health intervention. These deputies observed
12
SMITHs extreme and erratic conduct consisting of constant paranoia, persistent delusions,
13
perpetual pacing, talking to himself and talking to the walls and camera. Further, deputies had
14
15 observed SMITH dunking his head in a toilet, either to kill himself or to cool off. In addition, these

16 deputies knew that prior to SMITHs placement in Security Cell 2, SMITH made multiple

17 statements about death and dying, asking deputies not to kill him and imagining he had killed a
18 deputy. Despite notice of this extreme conduct, SMITH received no medical or mental health care.
19
Doctors did not talk to him. Nurses did not evaluate him. SMITH was put in Security Cell 2 because
20
he was too incoherent to answer questions and then was horrifically ignored for more twelve hours.
21
24. Upon arriving to escort SMITH to Holding Cell 11, Deputy Brandon Wood noted
22
23 SMITH was hanging from his shirt in an attempt to commit suicide. Deputies instructed SMITH to

24 get to the ground, face down, and SMITH complied. SMITH was also instructed to put his hands

25 behind his back and complied. Because SMITH was fidgety, deputies placed SMITH in
26
handcuffs to escort him to Holding Cell 11 for suicide watch. SMITH, with frothy spittle flowing
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1 from his mouth and breathing heavily, walked to Holding Cell 11 under his own power. While

2 being escorted to Holding Cell 11, SMITH told the deputies, I tried to hang myself. According to
3
Deputy Emmanuel Figueroa, SMITH was cooperative and followed every instruction that he
4
was given while walking to Holding Cell 11.
5
25. WCSO Policy 715.233 unequivocally requires that, If a staff member encounters an
6
inmate they believe is potential suicide risk, the staff member will: (a) Inform the medical staff
7
8 member on duty; (b) Notify a sergeant of an inmate moved to a special watch cell pending a

9 psychological evaluation; and, (c) Complete an incident report, stating the indicators of the inmates
10 behavior. No staff member informed the medical staff of SMITHs suicide attempt as required by
11
Policy.
12
26. WCSO Policy 715.300 further orders, All suicidal statements, threats or gestures
13
will be taken seriously.
14
15 27. WCSO Policy 715.308 requires that medical staff will be called to assume the

16 responsibility for care for the inmate. After Smiths attempt to hang himself medical staff was not

17 notified, in clear violation of this and other policies.

18 28. WCSO Policy 701.033 mandates, If Holding Cell 11 is used for an inmate whose
19
conduct constitutes a threat to his or her own safety, the inmate will be evaluated by medical
20
staff prior to being placed in the cell. SMITH was not evaluated by medical staff prior to being
21
placed in Holding Cell 11 as required by Policy.
22
23 29. Once in Holding Cell 11, SMITH was instructed to go to his knees and down to his

24 stomach. SMITH, sweating profusely, urinated on himself once again. Smith got down to his knees

25 but resisted going face down to the ground. SMITH tensed his body and said: Just shoot me in the
26
head! Just do it! Get it over with!
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1 30. SMITH, extremely agitated, was placed on his stomach but resisted allowing the

2 deputies to remove his clothing and place him in the modesty garment as required of inmates in
3
Holding Cell 11. SMITHs noncompliance with orders to get to the ground does not constitute
4
active resistance supporting the use of extreme and excessive force. At most, SMITHs conduct
5
was legally passive resistance force. SMITH was not fleeing, using weapons, threatening to use
6
weapons, grabbing the body parts of deputies, or threatening acts of harm.
7
8 31. The video recording made at during SMITHs time in Holding Cell 11 depicts, at

9 minimum, six to eight deputies who alternatively were on top of him and surrounding him. Some
10 held his ankles, some held his arms, and two, Defendants X and Y, as clearly visible from the video
11
recording, utilized excessive force upon the diamond area in the center of SMITHs back, cutting
12
off SMITHs ability to breathe and killing him. By pressing directly on SMITHs spine with their
13
knees using their full body weight, for a prolonged period, X and Y made it impossible for
14
15 SMITHs rib cage to expand and contract and for SMITH to breathe.

16 32. While the struggle to subdue SMITH was ongoing, Walker stated: We need to be

17 careful about excited delirium and call medical. Yet medical was not called and the deputies
18 continued the use of excessive force on SMITH, effectively killing him. The deputies were aware of
19
WCSO Policy 300.6 that urges deputies to utilize safety with a highly agitated, suicidal, and
20
irrational inmate. Walker knew of the risk of harm and provided notice to all deputies of the risk of
21
harm.2 Multiple deputies reported hearing Walker advise of the imminent risk of harm to SMITH
22
23 and the urgent need to call medical staff, yet none of the deputies stopped their respective use of

24
2
WCSO Policy 300.6 mandates special consideration for inmates like SMITH, [w]ho
25 exhibit extreme agitation, violent irrational behavior accompanied by profuse sweating,
extraordinary strength beyond their physical characteristics and imperviousness to pain (sometimes
26 called excited delirium), or who require a protracted physical encounter with multiple deputies to
27 be brought under control, may be at an increase risk of sudden death. Calls involving these
persons should be considered medical emergencies. Deputies who reasonably suspect a medical
28 emergency should request medical assistance as soon as practicable and have medical personnel
stage away if appropriate.
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1 force on SMITH.

2 33. SOLFERINO, as seen from the video, was completely, thoroughly, and intimately
3
involved in the struggle to subdue the prone SMITH. SOLFERINO, with his sergeant chevrons
4
clearly visible, walked around the deputies as they were on top of SMITH, peering this way and
5
that, putting his head down for a better look at the frenzied activity of the multiple deputies and
6
observing the excessive force. SOLFERINO at all times retained the ability to stop the frenzied
7
8 action but did not. At one instance in the video, SOLFERINO placed his hand on the shoulder of

9 either Defendant X or Y, patting the the deputys shoulder, as the deputy was kneeling on SMITHs
10 backas if to tell them good job boys, keep it up.
11
34. At no time did SOLFERINO advise the deputies to ease off, to call for medical staff,
12
or to allow SMITH time and opportunity to breathe.
13
35. SOLFERINO made a decision to place SMITH in the restraint chair. The chair was
14
15 set up outside the cell but before the deputies could apply the chairs ankle restraints, SMITH

16 stopped struggling, his body stopped moving, and Smith was unresponsive.

17 36. WCSO Policy 710.179 mandates, The Watch Commander will be notified and
18 the charge nurse will medically clear the inmate prior to the use of the restraint chair.
19
SMITH was not medically cleared by medical staff prior to the bringing of the restraint chair as
20
required by Policy.
21
37. Nurse Trudy Presutti was called and she and other medical staff entered Holding Cell
22
23 11 to begin chest compressions and other life saving measures on SMITH.

24 38. REMSA paramedics arrived at approximately 1:14 a.m. At 1:43 a.m. the

25 unresponsive SMITH was removed from the Jail and taken to Renown Trauma Room 7 in critical
26
condition due to a brain bleed. SMITH remained unresponsive in the trauma unit and was
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1 pronounced brain dead on August 29, 2015.

2 39. A brain bleed or hemorrhage is a type of stroke. Its caused by an artery in the brain
3
bursting and causing localized bleeding in the surrounding tissues and kills brain cells. It is caused
4
by a variety of factors including trauma and high blood pressure, both possessed by SMITH at the
5
time of SMITH death, and both were known to Defendants. Had medical personnel been called at
6
any of the numerous times Policy dictated medical personnel to be called, SMITHs chronic high
7
8 blood pressure, known to WCSO at the time of intake, could have been ascertained and appropriate

9 steps taken to avoid injury and death.

10 40. On April 5, 2015, more than seven months after SMITHs death, SMITHs death
11
certificate was signed by Washoe County Deputy Chief Medical Examiner Dr. Laura D. Night
12
(Night). Night listed the conditions contributing to SMITHs death as: Extreme physical exertion
13
preceding and during physical restraint by law enforcement. She termed the event a homicide
14
15 caused by complications of excited delirium.

16 41. Excited delirium, first described in the mid-1800s, has been described as delirium

17 with agitation caused by a particular event, most often seen in police cases wherein a person on
18 some stimulant drug induced state, like SMITH, experiences fear, panic, shouting, violence and
19
hyperactivity in the context of a struggle. It is marked by sudden cessation of struggle, respiratory
20
arrest and death. Excited delirium has gained increasing public attention recently due to the number
21
of post-mortem explanations offered by medical examiners regarding the death of individuals
22
23 restrained by law enforcement.

24 42. Excited delirium is not a currently recognized medical or psychiatric diagnosis

25 according to either the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) of the
26
American Psychiatric Association or the International Classification of Diseases (ICD-9) of the
27
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1 World Health Organization. Some experts believe the concept is junk science, a way to explain

2 when an individual is so excited they bring on their own death. In more than any other scenario,
3
police use excited delirium to explain away excessive force and brutalityin other words, it is not a
4
diagnosis but a cover-up for law enforcements aggressive tactics and efforts to avoid liability.
5
43. Given the violent and unpredictable nature of excited delirium victims, the literature
6
notes that rapid sedation, accompanied by external cooling, IV fluids, and monitoring is likely
7
8 essential to positive outcomes

9 44. Plaintiff believes and on that basis alleges that SMITHs death was caused
10 suffocation, the stoppage of breathing, also called asphyxiation. If suffocation is complete, the lack
11
of oxygen and excess of carbon dioxide in the blood will cause almost immediate loss of
12
consciousnessexactly what happened to SMITH.
13
45. Plaintiff believes and on that basis alleges that SMITHs death was completely
14
15 avoidable. Absent the extreme and outrageous conduct of Defendants X and Y, coupled with the

16 horrific supervision and encouragement, ratification, and enthusiasm of SOLFERINO, SMITH,

17 would be alive today.

18 46. Plaintiff believes and on that basis alleges that even if SMITHs death was caused by
19
excited delirium, Defendants and each of them were aware of that condition during the struggle
20
and minutes before SMITH became nonresponsive. WCSO Policy 300.6 mandates special
21
22 consideration for inmates like SMITH, [w]ho exhibit extreme agitation, violent irrational behavior

23 accompanied by profuse sweating, extraordinary strength beyond their physical characteristics and

24 imperviousness to pain (sometimes called excited delirium), or who require a protracted physical
25 encounter with multiple deputies to be brought under control, may be at an increase risk of
26
sudden death. Calls involving these persons, like SMITH, should be considered pursuant to WCSO
27
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1 Policy medical emergencies. Obviously, deputies who reasonably suspect a medical emergency

2 should request medical assistance as soon as practicable and have medical personnel stage away if
3
appropriate. This was not done for SMITH.
4
47. The reports of Deputies Walker, Timothy Lacey, Emmanuel Figueroa, Brandon
5
Wood and Asa Aninao, make clear that Deputy Walker announced he believed it could be excited
6
7 delirium, and stated, We need to be careful and call medical, in the midst of the struggle with

8 SMITH and during the time X and Y were kneeling on SMITHs back and lung area.

9 48. Plaintiff believes and on that basis alleges that if medical staff had been called, a
10 variety of life saving medical techniques could have been used to safeguard SMITH from death.
11
49. WCSO Policy 300.1.1 defines force as the application of physical techniques or
12
tactics, chemical agents or weapons to another person.
13
50. WCSOs Policy 300.2 mandates the use of force by law enforcement personnel is a
14
15 matter of critical concern. WCSO recognizes and respects, by Policy, the value of all human life

16 and dignity without prejudice to anyone.

17 51. WCSOs Policy 300.2.1, decrees: Any deputy present and observing another deputy
18
using force that is clearly beyond that which is objectively reasonable under the circumstances shall,
19
when in a position to do so, intercede to prevent the unreasonable force. A deputy who observes
20
another employee use force that exceeds the degree of force permitted by law should promptly
21
report these observations to a supervisor.
22
23 52. WCSOs Policy 300.3 commands, Deputies shall use only that amount of force that

24 reasonably appears necessary given the facts and circumstances perceived by the deputy at the time
25 of the event to accomplish a legitimate law enforcement purpose. The same Policy states, The
26
ultimate objective of every law enforcement encounter is to avoid or minimize injury.
27
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1 53. WCSOs Policy 300.3.2 defines factors used to determine the reasonableness of

2 force as: (a) The immediacy and severity of the threat to deputies or others; (b) The conduct of the
3
individual being confronted, as reasonably perceived by the deputy at the time; (c) Deputy/subject
4
factors such as age, size, relative strength, skill level, injuries sustained, level of exhaustion or
5
fatigue, the number of deputies available vs. subjects; (d) The effects of drugs or alcohol; (e)
6
Subjects mental state or capacity; (f) Proximity of weapons or dangerous improvised devices; (g)
7
8 The degree to which the subject has been effectively restrained and his/her ability to resist despite

9 being restrained; (h) The availability of other options and their possible effectiveness (i) Seriousness
10 of the suspected offense or reason for contact with the individual; (j) Training and experience of the
11
deputy; (k) Potential for injury to deputies, suspects and others; (l) Whether the person appears to be
12
resisting, attempting to evade arrest by flight or is attacking the deputy; (m) The risk and reasonably
13
foreseeable consequence of escape; (n) The apparent need for immediate control of the subject or a
14
15 prompt resolution of the situation; (o) Whether the conduct of the individual being confronted no

16 longer reasonably appears to pose an imminent threat to the deputy or others; (p) Prior contacts with

17 the subject or awareness of any propensity for violence; (q) Any other exigent circumstances.
18 54. WCSOs Policy 300.4 on the application of deadly force mandates a deputy may use
19
deadly force to protect him/herself from what he/she reasonably believes would be an imminent
20
threat of death or serious bodily injury. Examples provided by WCSO include whether the person
21
has a weapon or is attempting to access one and intends to use it against the deputy or another or the
22
23 person is capable of causing serious bodily injury or death without a weapon and intends to do so.

24 55. WCSO Policy 300.8 mandates: Deputies will receive periodic training on this

25 Policy and demonstrate their knowledge and understanding.

26
56. WCSO Policy 418.3 states, Any deputy responding to or handing a call
27
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 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 17 of 25

1 involving a suspected or actual mentally disabled individual or an involuntary mental illness

2 should consider utilizing conflict resolution and de-escalation techniques and language that is
3
appropriate for interacting with a mentally disabled person. At the time the multitude of
4
deputies descended on SMITH, he had just attempted to hang himself and was clearly mentally
5
disabled.
6
57. Defendants had, and have, a mandatory duty of care to properly and adequately hire,
7
8 train, retain, supervise, and discipline staff and medical employees to avoid unreasonable risk of

9 harm to inmates. Defendants, each and all, failed to take necessary, proper, or adequate measures to
10 prevent the violation of SMITHs and Plaintiffs rights, the suffering and death of SMITH, and the
11
injuries and damages to Plaintiff. Defendants, inclusive, breached their duty of care to citizens in
12
that they failed to adequately train, supervise and discipline their medical personnel and other
13
employees, in the exercise of professional standards of care of suicidal inmates and in the proper
14
15 detention and supervision of suicidal and mentally disabled inmates.

16 58. Defendants failure to protect SMITH, follow WCSO policies and procedures, and

17 most importantly, their failure to call medical staff when a call to medical staff was urgently
18 required by Washoe Countys policies cited above, was the actual and proximate cause of SMITHs
19
death.
20
59. Defendants had knowledge and showed conscious disregarded of the substantial risk
21
of harm caused to SMITH by their excessive force and failure to alert medical staff when indicated.
22
23 Even assuming SMITH died of excited delirium, which Plaintiff disputes, Defendants and each of

24 them had knowledge of the risk of harm of excited delirium and deliberately posed to SMITH

25 ignored that risk.

26
60. Defendants deliberate indifference to SMITHs serious medical and mental health
27
28

17
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 18 of 25

1 needs and safety resulted in his pronounced suffering prior to his death.

2 61. As a direct and proximate result of Defendants deliberate indifference to SMITHs

3
high risk of death, his surviving child, N.S., has lost the care, comfort, love, protection, advice,
4
society, companionship, and physical assistance in addition to expectations of support, maintenance
5
and other pecuniary benefits of his father.
6
62. Each individual Defendant acted recklessly or with callous indifference to SMITHs
7
8 life-threatening physical, medical and/or psychiatric condition and SMITHs and to Plaintiffs

9 constitutional rights. Plaintiff, as SMITHs beneficiary, is therefore entitled to an award of punitive

10 damages against said individual Defendants.
11
63. Plaintiff found it necessary to engage the services of private counsel to vindicate his
12
rights, and the rights of SMITH. Plaintiff is therefore entitled to recover all attorneys fees incurred
13
in relation to this action pursuant to Title 42 U.S.C. section 1988.
14
15 FIRST CAUSE OF ACTION

16 (Deliberate Indifference to Serious Medical Need in Violation of the Fourteenth Amendment

and 42 U.S.C. Section 1983)
17
64. Plaintiff hereby re-alleges and incorporates by reference all preceding paragraphs of
18
19 this Complaint.

20 65. Defendants policies, practices, acts, and omissions caused SMITH and Plaintiff to

21 be subjected to deprivation of rights by Defendants, acting under color of law of the United States
22
and State of Nevada which rights include, but are not limited to, privileges and immunities secured
23
to SMITH and Plaintiff by the Constitution and laws of the United States.
24
66. Defendants deliberate indifference to SMITHs serious medical/psychiatric needs
25
put SMITH at substantial risk of injury, caused him avoidable pain, mental suffering, and resulted
26

27 in SMITHs death.

28

18
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 19 of 25

1 67. Defendants policies, practices, acts, and omissions evidence constitutes deliberate

2 indifference to the serious medical needs of SMITH violates the the Fourteenth Amendment to the
3
United States Constitution.
4
68. Defendants have acted with deliberate indifference to SMITHs serious medical
5
needs by implementing, sanctioning, approving, ratifying, and/or failing to remedy policies,
6
practices, acts and omissions that deny, delay or intentionally interfered with appropriate
7
8 medical/psychiatric treatment.

9 69. By reason of the aforementioned acts, these Defendants, and each of them, have
10 violated the constitutional rights and liberty interests of SMITH, including those provided in the
11
Fourteenth Amendments to the U.S. Constitution, as well as those prohibitions against depriving a
12
person of a right to familial relationships without due process of law.
13
70. Defendants knew of and consciously disregarded SMITHs serious medical, physical
14
15 and mental health condition and substantial risk of death by suffocation. Alternatively, Defendants,

16 by consciously disregarding SMITHs serious medical condition of excited delirium, were

17 deliberately indifferent to SMITHs serious risk of harm and death.

18 71. Defendants knew of and consciously disregarded the fact that SMITH was suffering
19
from a mental disability and was a high-risk candidate for death by suffocation and/or excited
20
delirium, which subjective knowledge may be imputed from the obviousness of the risk and the fact
21
all Defendants were exposed to information concerning the risk of harm by Walker and thus must
22
23 have know about it and deliberately ignored it. Knowing that the Defendants had actual knowledge

24 of the risk of harm, Defendants were deliberately indifferent to his clear need for basic medical

25 intervention, ignored the obvious signs that Defendants X and Y were kneeling on SMITHs back
26
and cutting off his air supply, and failed to provide medical intervention, monitoring and treatment,
27
28

19
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 20 of 25

1 in violation of WCSO policies.

2 72. Defendants knew and consciously disregarded the fact, that SMITH had a serious but
3
treatable mental and physical health condition which required immediate care, treatment and close
4
supervision. SMITHs documented high blood pressure, erratic behavior, paranoia, and suicide
5
attempts were sufficient to place Defendants on notice of the need to alert medical staff before
6
engaging physically with SMITH. WCSO policies had numerous provisions which Defendants
7
8 ignore, specifically ordering medical staff to be alerted at various junctures. As a direct and

9 proximate result of the Defendants deliberate indifference to SMITHs high risk of death,
10 SMITHs son, N.S., has lost the care, comfort, love, protection, advice, society, companionship, and
11
physical assistance in addition to expectations of support, maintenance and other pecuniary benefits
12
from his father.
13
73. As a legal cause of Defendants deliberate indifference, acting under color of law,
14
15 acts and/or inactions, Plaintiff N.S. was deprived of his constitutional rights to a familial

16 relationship with his father.

17 SECOND CAUSE OF ACTION

18 (Excessive Force in Violation of the Fourteenth Amendment and Section 1983-Against
19 Defendants X and Y)

20 74. Plaintiff hereby re-alleges and incorporates by reference all preceding paragraphs of

21 this Complaint.
22
75. Defendants X and Y used objectively unreasonable force upon SMITH thereby
23
causing his death.
24
76. Defendants X and Y made an intentional decision with respect to the conditions
25
under which SMITH was confined to put SMITH at substantial risk of suffering serious harm.
26

27 77. At no time did SMITH pose a threat to the safety of Defendants X or Y or to anyone

28

20
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 21 of 25

1 else.
2 78. At no time did SMITH level a verbal threat or physical threat to Defendants X and
3 Y.
4 79. Defendants X and Y did not take reasonable available measures to abate that risk to
5 SMITH, even though a reasonable officer in the circumstances would have appreciated the high
6 degree of risk involving thus making the consequences of the Defendants conduct obvious.
7 80. Defendants X and Y, by not taking reasonable measures to avert such risk, caused

8 the death of SMITH.

9
81. As a direct and proximate result of the aforedescribed unlawful and malicious conduct
10
by Defendants X and Y, committed under color of law, SMITH died, and SMITHs son, Plaintiff N.S.,
11
has lost the care, comfort, love, protection, advice, society, companionship, and physical assistance in
12
addition to expectations of support, maintenance and other pecuniary benefits from his father.
13
82. The acts of Defendants X and Y were intentional, wanton, malicious and oppressive
14
and made with reckless indifference to SMITHs and Plaintiffs rights thus entitling Plaintiff to an
15
award of punitive damages against Defendants X and Y.
16
THIRD CAUSE OF ACTION
17
(Supervisory Liability: Fourteenth Amendment and Section 1983-Against SOLFERINO)
18
83. Plaintiff hereby re-alleges and incorporate by reference all preceding paragraphs of
19
this Complaint.
20
84. Defendant SOLFERINO acted under color of state law.
21
22 85. Defendant SOLFERINO knew that his subordinates, Defendants X and Y, were

23 engaging in acts of excessive force and knew or reasonably should have known that Defendants X
24 and Ys conduct, which he could see and which he watched, would deprive the Plaintiff his right to
25
be free from excessive force.
26
86. Defendant SOLFERINO failed to act to prevent Defendants X and Y from engaging
27
28

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 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 22 of 25

1 in such conduct that violated SMITHs constitutional rights.

2 87. Defendant SOLFERINO disregarded the known and obvious consequences of the
3
actions of his subordinates, Defendants X and Y, kneeling directly on the back of SMITH and
4
thereby cutting off SMITHs air supply, and violating thereby SMITHs rights to be free from
5
excessive force.
6
88. Defendant SOLFERINOs actions caused his subordinates, Defendants X and Y, to
7
8 deprive SMITH of his rights to be free from excessive force.

9 89. Defendant SOLFERINO engaged in conduct that showed a reckless or callous

10 indifference to the deprivation by his subordinates, Defendants X and Y, to deprive SMITH of his
11
rights to be free from excessive force.
12
90. Defendant SOLFERINOs conduct was so closely related to the deprivation of
13
SMITHs rights as to be the moving force that caused SMITHs death.
14
15 91. As a direct and proximate result of the aforedescribed unlawful and malicious conduct

16 by Defendant SOLFERINO, committed under color of law, SMITH died, and SMITHs son, N.S., has

17 lost the care, comfort, love, protection, advice, society, companionship, and physical assistance in

18 addition to expectations of support, maintenance and other pecuniary benefits from his father.

19 92. The acts of Defendant SOLFERINO were intentional, wanton, malicious and

20 oppressive and made with reckless indifference to SMITHs and Plaintiffs rights thus entitling

21 Plaintiff to an award of punitive damages against Defendants X and Y.

22 FOURTH CAUSE OF ACTION

23 (Survival Action: Violation of Fourteenth Amendment, 42 U.S.C. Section 1983)

24 93. Plaintiff hereby re-alleges and incorporates by reference all preceding paragraphs of

25 this Complaint.
26 94. The foregoing claim for relief arose in SMITHs favor and SMITH would have been
27
28

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 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 23 of 25

1 the Plaintiff with respect to this claim if he had lived.

2 95. The individual Defendants acted under color of law in failing to reasonably render
3
appropriate medical care and intervention when on notice of the need to do so, and were
4
deliberately indifferent to SMITHs medical/psychiatric care, thereby depriving Plaintiff and
5
SMITH of certain constitutionally protected rights, including, but not limited to the right to due
6
process of law and the right to be free from excessive force.
7
8 96. Said rights are substantive guarantees under the Fourteenth Amendment to the

9 United States Constitution.

10 FIFTH CAUSE OF ACTION
11 (Pendent State Claims: Assault and Battery-Against Defendants X and Y)
12 97. Plaintiff hereby re-alleges and incorporates each and every allegation contained in
13 the preceding paragraphs.
14 98. Defendants X and Y forcibly touched, grabbed, and kept SMITH subdued in a
15 manner that did not allow him to breathe to move and thereafter restricted his movement, holding
16 him against her will without his permission.
17 99. Defendants X and Y forcibly touched, grabbed, and used force with their knees
18 upon the back of SMITH, thereby causing his death.
19 100. The touch and force upon SMITH was unwelcome.
20 101. At all times SMITH was frightened of Defendants X and Y, agitated and fearful
21 they would be harming him and causing him death.
22 102. As a direct and proximate result of the aforedescribed unlawful and malicious
23 conduct by Defendants X and Y, committed under color of law, SMITH died, and SMITHs son,
24 Plaintiff N.S., has lost the care, comfort, love, protection, advice, society, companionship, and physical
25 assistance in addition to expectations of support, maintenance and other pecuniary benefits from his
26 father.
27 103. The acts of Defendants X and Y were intentional, wanton, malicious and oppressive
28

23
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 24 of 25

1 and made with reckless indifference to SMITHs and Plaintiffs rights thus entitling Plaintiff to an
2 award of punitive damages against Defendants X and Y.
3 SIXTH CAUSE OF ACTION

4 (Pendant State Claim-Negligence-Against Defendants X and Y)

5
104. Plaintiff hereby re-alleges and incorporates by reference all preceding paragraphs of
6
this Complaint.
7
105. The Defendants owed a duty of care to the Plaintiff to refrain from using excessive
8
force to restrain the Plaintiff, to provide the Plaintiff with adequate medical care, and to abide by
9
10 Washoe Countys policies, procedures and rules related to the treatment of mentally ill arrestees, the

11 use of force, and medical treatment as described above in this Complaint.

12 106. The Defendants breached their duty of care to the Plaintiff by failing to refrain from
13
using excessive force to restrain the Plaintiff, to provide the Plaintiff with adequate medical care,
14
and to abide by Washoe Countys policies, procedures and rules related to the treatment of mentally
15
ill arrestees, the use of force, and medical treatment as described above in this Complaint.
16
17 107. The Defendants conduct described herein is the but-for and proximate cause of the

18 damages suffered by the Plaintiff.

19 108. The Plaintiff has suffered damages because of the negligence of the Defendants in an
20 amount to be proven at trial.
21
PRAYER FOR RELIEF
22
WHEREFORE, Plaintiff prays for relief as follows:
23
1. Issue a judgment declaring that the actions of Defendants described herein are
24
25 unlawful and violate Plaintiffs rights under the constitution and laws of the United States;

26 2. For general damages in a sum according to proof;

27 3. For special damages in a sum according to proof;

28

24
 Case 3:17-cv-00133 Document 1 Filed 03/02/17 Page 25 of 25

1 4. For punitive damages in a sum according to proof;

2 5. For leave to amend or supplement the Complaint as the identity of Defendants X and
3
Y is discovered and new evidence is uncovered;
4
6. For declaratory relief;
5
7. For reasonable attorneys fees pursuant to 42 U.S.C. Section 1988;
6
8. For cost of suit herein incurred; and,
7
8 9. For such other and further relief as the Court deems just and proper.

9 DATED: This 2 day of March, 2017

10
11 BY:

12 /s/ Terri Keyser-Cooper

TERRI KEYSER-COOPER
13 Law Office of Terri Keyser-Cooper
14 /s/ Luke A. Busby
15 LUKE A. BUSBY
Luke Andrew Busby, Ltd.
16
Attorneys for Plaintiffs
17
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