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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

James Alan Bush, Plaintiff, v. Officer Miguel Flores (#3881), Defendant.

Case No. 09-cv-01024 (PR) RS COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF UNDER CIVIL RIGHTS ACTS [Title 42 U.S.C.A. 1983] Judge Richard Seeborg

INTRODUCTION Plaintiff brings his first cause of action pursuant to Title 42 U.S.C.A. 1983 against Defendant San Jose Police Officer Miguel Flores (#3881), who, while acting under color of state law, used excessive force in the course of affecting an arrest of the plaintiff, constituting a violation of the rights guaranteed him by the Fourth Amendment to the United States Constitution. Insodoing, the aforementioned defendant caused significant physical and psychological injury to the plaintiff, including cardiac arrythmia and a broken shoulder, and post-traumatic stress disorder, which COMPLAINT PAGE 1 OF 6 09-cv-01024 (PR) RS

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led the plaintiff to attempt suicide while in custody. Plaintiff contends that the actions of Defendant Flores in his use of force during the arrest of the plaintiff were not objectively reasonable in light of the facts and circumstances confronting the defendant, considering the insignificance of the crime the plaintiff was suspected of having committed, the absence of any danger or immediate threat the plaintiff posed to the defendant or others, and the fact that the plaintiff neither actively resisted arrest nor attempted to evade arrest by fleeing. Plaintiff further contends that the continued use of physical force on the plaintiff, after he was arrested and restrained, was unreasonable, in that the plaintiff was securely under the control of the defendant, and was not attempting escape; moreover, the conduct of the defendant was willful and malicious, as the plaintiff made the defendant aware of an existing physical injury, which the defendant consciously ignored in callous and reckless disregard of the right of the plaintiff to be free from the unnecessary and wanton infliction of pain guaranteed him by the Eighth Amendment to the United States Constitution. Accordingly, Plaintiff is entitled to an award of actual and punitive damages against the defendant in an amount that will reasonably and fairly compensate the plaintiff for the harm that the wrongful conduct of the defendant proximately caused, including recovery of the reasonable cost of medical and psychological treatment for personal injuries suffered by the plaintiff that the plaintiff has expended or is expected to require in the future; and, for physical pain, suffering, disfigurement, or disability; for mental and emotional injury suffered by the plaintiff, and that which the plaintiff will reasonably suffer in the future. COMPLAINT PAGE 2 OF 6 09-cv-01024 (PR) RS

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Plaintiff brings his second cause of action also pursuant to Title 42 U.S.C.A. 1983 against Defendant Santa Clara County Department of Correction, which has failed and refused, and continues to fail and refuse, to provide the plaintiff with proper medical treatment, constituting the unlawful deprivation of the right to due process afforded the plaintiff as a pretrial detainee by the Fourteenth Amendment to the United States Constitution. Plaintiff, having sustained injuries caused by Defendant Flores, and having other serious medical conditions for which proper medical treatment is being denied by jail medical staff. Plaintiff contends that the inability or unwillingness of the defendant to provide adequate medical treatment to the plaintiff amounts to a deliberate indifference to his serious medical needs, and the unnecessary and wanoton infliction of pain prohibited by the Eighth Amendment to the U.S. Constitution. Accordingly, the plaintiff seeks an injunction from this Court, pursuant to California Penal Code 4011, to remove the plaintiff to a county hospital, and, in particular, Valley Medical Center, on the ground that the plaintiff requires medical and surgical treatment necessitating hospitalization that cannot be furnished or supplied at the jail. PARTIES Plaintiff, James Alan Bush, is, and at all times mentioned in this complaint was, a resident of Santa Clara County, California. Defendant, San Jose Police Officer Miguel Flores (#3881), is and at all times mentioned in this complaint was, a resident of Santa Clara County, California. At all times mentioned in this complaint, Defendant Flores was an appointed, qualified, and acting police officer of San Jose, California. COMPLAINT PAGE 3 OF 6 09-cv-01024 (PR) RS

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4.

On or around December 12th, 2008, Defendant Flores, while acting in his capacity as a police officer for the City of San Jose, entered the apartment building in which the plaintiff resided with four other police officers, with weapons drawn, and while carrying flashlights, the plaintiff was sleeping in his bed. Defendant Flores, without identifying himself as a police officer, or otherwise notifying the plaintiff of his intention to arrest him, commanded the plaintiff to come outside, which the plaintiff immediately did. As the plaintiff stepped into the darkened hallway, Defendant Flores warned the plaintiff to lay on the floor and put his hands behind his back. In a confused, intimidated, and disoriented state of mind, the plaintiff asked the officers to identify themselves (five flashlights were blinding the plaintiff) and to explain the nature of the call. In response, Defendant Flores holstered his gun and withdraw and deployed his service TASER. When the plaintiff fell to the ground, Defendant Flores ordered the plaintiff to place his hands behind his back; the plaintiff complied. Defendant then handcuffed the plaintiff. Defendant then ordered the plaintiff to stand up, and grabbed the plaintiffs left arm. Plaintiff informed the defendant of a prior injury to his left shoulder, and asked the defendant to assist him to his feet using his right arm, to which Defendant Flores responded, I dont give a fuck about your busted-ass shoulder! Defendant Flores then yanked the plaintiffs left arm with more speed and force than necessary to lift the plaintiff to his feet, causing a bone in the plaintiffs shoulder to snap cleanly into two segments (the plaintiffs injuries were later confirmed by X-ray by jail medical staff; paramedics noted an irregular heart beat at the scene, and cited the TASER as the cause).

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5.

At the time of the above-described assault and battery by the defendant, the plaintiff was unarmed and was not the physical equivalent of the defendant or the other four officers; moreover, the plaintiff made no threatening gestures towards the officers or others, and there was no opportunity to flee the scene. Furthermore, the reasons Defendant Flroes cited in his report for the 911 call call response was that the plaintiff turned off the lights inside the apartment building, which the plaintiff denies, and which is not a crime.

6.

As a direct and proximate result of the assault and battery, the plaintiff sustained broken bones in his shoulder, as well as cardiac arrythmia. The broken shoulder resulted in severe pain, deformity, and loss of mobility and strength in the plaintiffs left arm, all to the plaintiffs damage in the sum of $250,000.00

7.

As a further and proximate result of the assault and battery by Defendant Flores, the plaintiff suffered several physical and mental suffering, and will continue to suffer physical pain and mental suffering in the future, all to the plaintiffs further damage in the sum of $250,000.00.

8.

As a further direct and proximate result of the assault and battery, the plaintiff will be compelled to pay the sum of $100,000.00 to various physicians, surgeons, and other health care professionals for the care and treatment of the injuries sustained by the plaintiff, all to the plaintiffs further damage in that amount. Plaintiff is informed and believes, and based on that information and belief alleges, that it will be necessary for the plaintiff to incure additional medical expenses in a sum or sums now unknown to the

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plaintiff. Plaintiff requests the permission of the Court to amend this complaint when such sum or sums have been determined. The conduct of Defendant Flores as described above was willful and malicious. As a result, the plaintiff is entitled to an award of punitive damages. 10. Plaintiff has complied with the California Government Tort Claims Act requirement by filing a claim with the San Jose Police Department on January 26th, 2009, which was subsequently denied on March 18th, 2009. REQUESTED RELIEF WHEREFORE, Plaintiff requests judgment against the defendants, jointly and severally: 1. In the amount of $250,000.00, as compensatory damages; 2. In the amount of $250,000.00, as punitive damages; 3. Awarding the plaintiff the costs of this action; and, 4. Granting the plaintiff such other and further relief as the court deems just and proper. Dated: February 7th, 2009

James Alan Bush Plaintiff in pro per

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