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Joseph T. Stewart (SB #022047) LAW OFFICE OF JOSEPH T. STEWART, P.L.L.C. 1100 East Washington Street, Suite 200 Phoenix, Arizona 85034 Tel: (602) 253-3366 Fax: (602) 253-8599 joseph.stewart@azbar.org Attorneys for: Plaintiff

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Defendants. 21 22 23 24 25 26 1. For his Complaint against Defendants, Plaintiff alleges as follows: JURISDICTION AND VENUE This action is asserted pursuant to 42 U.S.C. 1983, the laws and Constitution of the United States, and the laws and Constitution of the State of Arizona. This CITY OF PHOENIX, a body politic; PHOENIX UNION HIGH SCHOOL DISTRICT; DANIEL MENDEZ, in his official and individual capacity; LUIS LEMUS, in his official and individual capacity; GEORGE PIZARRO, in his official and individual capacity; CRAIG PLETNIK, in his official and individual capacity; and LEE FERNWAULT, in his official and individual capacity, vs. (Jury Trial Requested) J. O., a minor, by JEROME OVERSTREET AND DENISE OVERSTREET, next best friends, Plaintiff, COMPLAINT No. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331 and 1343 and the United States Constitution. Further, this Court has supplemental jurisdiction over the claims based upon the laws and Constitution of the State of Arizona pursuant to 28 U.S.C. 1367(a). The acts and/or omissions alleged giving rise to the claims asserted herein occurred within the jurisdiction of this Court and thus venue is proper pursuant to 28 U.S.C. 1391. Plaintiff has met all jurisdictional and administrative prerequisites to filing this action, including the timely lodging of a notice of claim with all public entities named as defendants herein in accord with A.R.S. 12-821.01. Further, said notice of claim was deemed denied as a matter of law prior to the filing of this action. THE PARTIES The Plaintiff, J. O., a minor, is an African American, who was, and is a student at Betty Fairfax High School within the Phoenix Union High School District. At the time of the events alleged herein, J.O. was sixteen years old and in the eleventh grade. Jerome Overstreet is J.O.s Father and Denise Overstreet is J.O.s mother. The City of Phoenix is a body politic within the jurisdiction of this Court. The City of Phoenix is responsible for the policies and procedures of the District and Betty Farifax High School, including those policies and procedures related to disciplinary actions involving students, training and hiring of administrative and security personnel, publishing student disciplinary information, limitations on security personnels ability to stop, detain, question students, limitations on security personnels ability to use physical force on minors who are students at Betty Fairfax High School, and the duty to avoid unnecessary harm to students, including harm to academic progress, emotional wellbeing and the reputation of

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students. Further, the City of Phoenix is responsible for all actions and omissions of its officers, agents and employees, including those officers agents and employees of the District and Betty Fairfax High School. Phoenix Union High School District (hereinafter sometimes the District) is the governing body which conducts administrative proceedings related to Betty Fairfax High School. The District is located within the jurisdiction of this Court. The District is responsible for the policies and procedures of the District and Betty Farifax High School, including those policies and procedures related to disciplinary actions involving students, training and hiring of administrative and security personnel, publishing student disciplinary information, limitations on security personnels ability to stop, detain, question students, limitations on security personnels ability to use physical force on minors who are students at Betty Fairfax High School, and the duty to avoid unnecessary harm to students, including harm to academic progress, emotional wellbeing and the reputation of students. Further, the District is responsible for all actions and omissions of its officers, agents and employees, including those officers agents and employees of the District and Betty Fairfax High School. Daniel Mendez (hereinafter sometimes Mr. Mendez), at all times relevant was a security guard working for Betty Farifax High School and the District. Mr. Mendez is being sued in his individual capacity due to his direct involvement in detaining J.O. and his use of excessive physical force which led to J.O. sustaining a stress fracture in his arm. Luis Lemus (hereinafter sometimes Mr. Lemus), at all times relevant was a security guard working for Betty Fairfax High School and the District. Mr. Lemus is being sued in his individual capacity due to his direct involvement in detaining J.O. and his use of excessive physical force which led to J.O. sustaining a stress

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fracture in his arm. George Pizarro (hereinafter sometimes Officer Pizarro) was, at all times relevant, a Phoenix Police Officer working in the capacity of a School Resource Officer at Betty Fairfax High School. Officer Pizarro is being sued in his individual capacity due to his direct involvement in detaining J.O. and his use of excessive physical force which led to J.O. sustaining a stress fracture in his arm. Craig Pletnik (hereinafter sometimes Mr. Pletnik) was, at all times relevant, the Phoenix Union High School District Community Relations Manager and spokesman for the District. Lee Fernwault (hereinafter sometimes Mr. Fernwault) was, at all times relevant the Dean of Students at Betty Fairfax High School. Mr. Pletnik and Mr. Fernwault are being sued in their individual capacities due to false statements which they made in a public forum alleging prior incidents of disciplinary history related to J.O.. Further, such disclosure contained information which was of a private nature. GENERAL ALLEGATIONS All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 11. In the fall of 2011, J.O. was a 16 year old junior at Betty Farifax High School. J.O.s academic record was exemplary and he was well known by the school staff as a model student. In addition, J.O. was active in the drama club and was a member of the band. On January 19, 2011, J.O. was at Betty Farifax High School in the parking lot just after school had ended. J.O. was walking to his car, intending to go to get something to eat before he had to be at band practice. As he approached his car, J.O. could see that security guards had detained a student suspected of fighting right next to J.O.s car. The security guard instructed J.O. to stay clear of the car

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until the matter was resolved. J.O. then waited, at a distance as instructed. After waiting roughly twenty minutes, J.O. realized that he was not going to be able to leave the campus to get food and be timely for band practice. J.O. then started to talk with some of his friends nearby at the student pickup area. Some time later, Security Guard Daniel Mendez came over to J.O. and the group of students he was with and instructed the group to move to the sidewalk across the street. J.O. and his friends complied with Mr. Mendez request without question. Before J.O. and his friends could get across the street, Mr. Mendez, without any justification, yelled stop. J.O., at first, had no idea that Mr. Mendez was asking him to stop, but believed that Mr. Mendez was speaking to another student, therefore J.O. kept walking with his friends. Another student alerted J.O. that Mr. Mendez was asking him to stop at which time J.O. stopped walking. Although J.O. was in a group of students, J.O., and only J.O., was directed to stop walking. Mr. Mendez then demanded to see J.O.s ID card. J.O., not having had any such contact with security, was hesitant to give Mr. Mendez his ID card without knowing what he did wrong and asked why he had to produce his ID card. Mr. Mendez responded by approaching J.O. in a threatening manner and stating Do you think that youre hard? J.O. thought that Mr. Mendez behavior was unusual for a security guard and then backed up, turned around and walked away from Mr. Mendez. As J.O. was walking away, one of his friends, Luis Jones walked over to him and asked what was going on. At that point, J.O. overheard Mr. Mendez speaking

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with Luis Lemus, another security guard about taking J.O. to the security office. Moments later, J.O. felt Mr. Lemus grab is right harm and turn him around. Mr. Mendez grabbed J.O.s left arm. Both Mr. Lemus and Mr Mendez were twisting J.O.s arms and lifting them upward attempting to pull J.O.s arms behind his back. Instinctually, believing that the security guards were going to hurt him, J.O. tried to free his arms while yelling at the guards to get off of him. J.O. then overheard one of the security guards say Lets body slam him on his face. At that time J.O. felt someone attempt to grab his leg to lift him causing J.O. to fear for his safety. Two other security guards then approached J.O. to help detain him. One guard, known to J.O. as Big Larry started to push J.O. in the direction of the security office. The other guard, known to J.O. as Kenny was also assisting. At that time, a school resource officer and member of the Phoenix Police Department, George Pizarro, approached in order to aid in escorting J.O. to the security office. When Officer Pizarro approached J.O., he identified himself as a police officer and indicated that he was arresting J.O. for disorderly conduct. J.O. indicated that he understood and began to calm down. J.O. explained to Officer Pizarro that he did not give Mr. Mendez his ID card because he had done nothing wrong. While Officer Pizarro was addressing J.O., Mr. Mendez stated to J.O. I could knock you out. Again, J.O. became tense and Officer Pizarro handcuffed him. Officer Pizarro stated that he handcuffed J.O. because he would not loosen his arms and allow himself to be escorted as swiftly as possible. Officer Pizarro applied the handcuffs unreasonably tight which cut/scratched

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J.O.s wrist and caused J.O. to experience pain in his wrists along with the pain in his left arm. J.O. was then taken to the security office, searched and detained. J.O. remained handcuffed with his hands behind his back in the security office for approximately one hour before Officer Pizarro reapplied the handcuffs to allow for J.O. to have his hands in front of him. Mr. Mendez engaged J.O. because he was African-American and because he was smaller than the others. Mr. Mendez was previously arrested for being involved in a gang-related driveby-shooting. This incident involved two of Mr. Mendez associates who confronted three African-American men on the street using racial slurs. Mr. Mendez was alleged to have driven to the scene with another associate who used Mr. Mendez gun to shoot at the African-American men. Both Mr. Mendez and Mr. Lemus have been arrested on criminal charges before being hired by the District. Mr. Mendez was arrested for aggravated assault in 2004 and disorderly conduct in 2009. Mr. Lemus was arrested for possession of marijuana in 1999. When officers attempted to arrest Mr. Lemus, it was alleged that he struck a female officer. The District knew or should have known of Mr. Mendez and Mr. Lemus criminal history when it hired them. As a result of the incident, J.O. was charged administratively with disruptive conduct and threatening members of the school. J.O. was suspended pending resolution of the administrative matter within the District and due to the ongoing litigation, J.O. missed the balance of the 2010-

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2011 school year. J.O. was ultimately reinstated and the administrative charges were dismissed. J.O. was also charged with disorderly conduct in juvenile court, which was also dismissed. As a result of the incident, J.O. sustained a fracture of his left arm. J.O. continued to experience pain in his left arm for weeks after the incident, including shooting pain in the arm. J.O. also experienced a decreased range of motion and inability to lift heavy objects which prevented him from participating in playing the bass drum. Due to the suspension, J.O. fell behind, missing some credits in school. J.O. missed several weeks of school altogether. Further, J.O. was forced to enroll in online classes, which did not provide all of the classes in which J.O. had been enrolled while attending Betty Fairfax High School. Due to the change in format, J.O.s grades suffered and he lost contact with his classmates. As a result of the entire ordeal, J.O. has experienced flashbacks, difficulty sleeping, anxiety and depression, which resulted in J.O. seeing a child psychologist. During an interview with the local Phoenix NBC affiliate after the incident, the District Community Relations Manager Craig Pletnik made false statements regarding J.O.s student record. Mr. Pletnik stated that J.O. had been previously disciplined for fighting. At an administrative hearing regarding disciplinary action against J.O. at the District, the Dean of Students, Lee Fernwault stated, on the record, that J.O. had been disciplined for fighting on prior occasions. J.O. had not been disciplined for fighting. Mr. Pletnik and Mr. Fernwault knew or

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should have known of J.O.s actual school record. FIRST CLAIM FOR RELIEF (Violation of Constitutional Rights to be Free From Unreasonable Seizure and Excessive Force) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 55. 56. Mr. Mendez had no cause to initially stop J.O.. J.O. had complied with Mr. Mendez direction to move to the sidewalk and had exhibited no disruptive or dangerous behavior which would have justified stopping him. When Mr. Mendez initially approached J.O. to request the ID card, he did so in an agressive and threatening manner. The school rules/code requires that students obey the reasonable inquiries and directions of teachers, administrators, and other District employees and shall respond to requests for information. Mr. Mendez demands were not reasonable, but were arbitrary and capricious. Mr. Mendez and Mr. Lemus decision to seize J.O. with physical force rather than verbally directing him to accompany them to the security office, or allowing him to go to band practice was also unreasonable, arbitrary and capricious. Mr. Mendez and Mr. Lemus also acted unreasonably in using physical force against J.O. in the form of twisting J.O.s arm causing a fracture and attempting to body slam him to the ground. The physical force employed by Mr. Mendez and Mr. Lemus was excessive. Officer Pizarro did not have reasonable suspicion or probable cause to believe that J.O. had committed an offense. Officer Pizarro did not have justification for taking J.O. into custody. The incident alleged herein did not disrupt any school function or activity and did

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not incite other students to fight or otherwise cause disruption on the school grounds. Officer Pizarro further acted unreasonably by placing J.O. in handcuffs for not acting completely relaxed and for failing to walk as swiftly as possible to the security office. By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, the District and the City of Phoenix are liable for the violations of J.O.s constitutional rights. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. SECOND CLAIM FOR RELIEF (Violation of Constitutional Rights to Equal Protection) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 68. The Fourteenth Amendment to the United States Constitution provides, in pertinent part, that No state shall ... deny to any person within its jurisdiction the equal protection of its laws. African-Americans, including J.O., are members of a protected class. J.O. was subjected to the above-referenced treatment based, in part, on his race. Mr. Mendez denied J.O. equal protection under both the United States Constitution and the Arizona Constitution. Mr. Mendez had no reason to initially stop J.O., but was motivated by racial bias, prejudice and/or animus towards African-Americans.

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72.

By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, the District and the City of Phoenix are liable for the violations of J.O.s constitutional rights.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. THIRD CLAIM FOR RELIEF (Violation of Substantive Due Process) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 73. By engaging in the conduct mentioned herein, the City of Phoenix and the District have caused a disruption in J.O.s education and such disruption is both arbitrary and unreasonable when compared to J.O.s conduct. 74. Suspension of J.O. for the balance of the 2010-2011 school year was excessive discipline. 75. There was no legitimate interest held by the District or the City of Phoenix which would justify the effective suspension which was imposed on J.O.. 76. As a direct and proximate result of the suspension, J.O. was damaged in an amount to be proven at trial. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full.

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FOURTH CLAIM FOR RELIEF (False Arrest/False Imprisonment) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 77. Mr. Mendez, Mr. Lemus and Officer Pizarro, each without lawful authority and without consent, wrongfully arrested/imprisoned J.O.. Mr. Mendez had no justification for stopping J.O.. Mr. Lemus and Mr. Mendez had no justification for using force to detain J.O.. Officer Pizarro did not have reasonable suspicion or probable cause to arrest J.O.. Officer Pizarro, Mr. Mendez and Mr. Lemus acted unreasonably in restraining J.O. by the use of physical force. By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, the District and the City of Phoenix are liable for the violations of J.O.s constitutional rights. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. FIFTH CLAIM FOR RELIEF (Assault) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 83. Mr. Mendez, Mr. Lemus, and Officer Pizarro each placed J.O. in a situation where he had a reasonable apprehension that he was going to be harmed by approaching him in a threatening manner.

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84.

As a direct and proximate result of the actions of Mr. Mendez, Mr. Lemus, and Officer Pizarro, J.O. suffered injuries and was damaged in an amount to be proven at trial.

85.

By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, or employing those who participated in the above-mentioned conduct, the District, and the City of Phoenix are liable.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. SIXTH CLAIM FOR RELIEF (Battery) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 86. Contact by Mr. Mendez, Mr. Lemus, and Officer Pizarro was without J.O.s consent. 87. By using physical force to detain and transport J.O., Mr. Mendez, Mr. Lemus, and Officer Pizarro caused J.O. to sustain injuries including cuts/abrasions to his wrist and a fracture to his left arm. 88. As a direct and proximate result of the actions of Mr. Mendez, Mr. Lemus, and Officer Pizarro, J.O. was damaged in an amount to be proven at trial. 89. By authorizing and acquiescing in, ratifying and/or participating in the abovereferenced conduct, or employing those who participated in the above-mentioned conduct, the District, and the City of Phoenix are liable. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and

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against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with an award of attorney fees and costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. SEVENTH CLAIM FOR RELIEF (Negligent Hiring, Retention, and Supervision) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 90. The District and the City of Phoenix had a duty to ensure that the District hires personnel which are responsible and which will not present a danger to the students at school. 91. The District and the City of Phoenix had a duty to screen its employees, namely Mr. Mendez and Mr. Lemus, to ensure that the students at school will be in a safe environment. 92. The District and the City of Phoenix had a duty to supervise the conduct of its employees and take appropriate action to ensure that it does not retain individuals who pose a danger to the students. 93. The District and the City of Phoenix breached their duty by hiring, retaining, and failing to properly supervise Mr. Mendez an Mr. Lemus. 94. The District and the City of Phoenix knew or should have known of the criminal history of Mr. Mendez and Mr. Lemus. 95. As a direct and proximate result of the breach of duty, J.O. was damaged in an amount to be proven at trial. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim

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along with costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. EIGHTH CLAIM FOR RELIEF (Defamation and False Light) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as follows: 96. Mr. Pletnik and Mr. Fernwault each made false statements regarding J.O.s student record. 97. Mr. Pletnik and Mr. Fernwault knew or should have known that the statements were false. 98. The statements made by Mr. Pletnik and Mr. Fernwault placed J.O. in a false light to the general public which caused damage to J.O.s reputation at his school and in the community at large. 99. As a direct and proximate cause of the statements made by Mr. Pletnik and Mr. Fernwault, J.O. has been damaged in an amount to be proven at trial. 100. By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, or employing those who participated in the above-mentioned conduct, the District, and the City of Phoenix are liable. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. NINTH CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) All prior allegations are incorporated herein by this reference. Plaintiff further alleges as

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follows: 101. Mr. Mendez approached J.O. in a threatening manner, stating that he was going to body slam J.O.. 102. Mr. Mendez actions were both extreme and outrageous as he was a security guard charged with protecting students. 103. Mr. Mendez conduct was intended to cause fear and emotional distress or the acts were done without regard for the likely consequences. 104. Mr. Mendez conduct caused J.O. to be humiliated and severely distressed emotionally. 105. 106. Mr. Mendez conduct caused J.O. to seek psychological counseling. As a direct and proximate result of Mr. Mendez conduct, J.O. has been damaged in an amount to be proven at trial. 107. By authorizing and acquiescing to, ratifying and/or participating in the abovereferenced conduct, or employing those who participated in the above-mentioned conduct, the District, and the City of Phoenix are liable. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and against the Defendants named in this Claim in an amount to be proven at trial, along with an award of punitive damages to address the wilful and malicious conduct giving rise to the Claim along with costs incurred in pursuit of this claim and interest on the aggregate balance at the highest legal rate from the date of entry of judgment until paid in full. DATED this 19th day of January, 2012 . LAW OFFICE OF JOSEPH T. STEWART, P.L.L.C. By: /s/ Joseph T. Stewart Joseph T. Stewart Attorney for Plaintiff

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