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Johnson v. San Benito County

United States District Court, Ninth Circuit, California, N.D. California
Mar 1, 2013
CV 12-03691 LHK (N.D. Cal. Mar. 1, 2013)

Opinion

          John Houston Scott, SBN 72578, Lizabeth N. de Vries, SBN 227215, SCOTT LAW FIRM, San Francisco, CA, john@scottlawfirm.net, liza@scottlawfirm.net, Attorneys for Plaintiff, Brett Johnson.

          Michael C. Serverian, RANKIN LANDSNESS LAHDE SERVERIAN & STOCK, Attorneys for Defendants.

          Mark E. Davis, Attorneys for Patrick Turturici.


          STIPULATION AND [PROPOSED] ORDER FOR PLAINTIFF TO FILE AMENDED COMPLAINT

          LUCY H. KOH, District Judge.

         The parties, plaintiff Brett Johnson and defendants San Benito County, Patrick Turturici and Tony LaMonica, through counsel, jointly submitted a stipulation and proposed order seeking an adjustment to the case-management schedule to extend the deadline for the plaintiff to amend his complaint and add new parties from January 31, 2013 to February 28, 2013. Now the parties and new counsel for Patrick Turturici present this stipulation and proposed order to permit plaintiff leave to file his First Amended Complaint on February 28, 2013.

         [PROPOSED] ORDER

         Good cause showing and based on the parties' stipulation, the Court grants plaintiff leave to file his First Amended Complaint attached as Exhibit A.

         Exhibit A

         Plaintiff, BRETT JOHNSON, alleges as follows:

         JURISDICTION

         1. This action arises under 42 U.S.C. §1983. Jurisdiction is conferred by virtue of 28 U.S.C. §§ 1331 and 1343.

         2. The conduct alleged herein occurred in San Benito County. Venue lies in the United States District Court for the Northern District of California under 28 U.S.C. §1391 (b)(2).

         PARTIES

         3. Plaintiff BRETT JOHNSON is an individual who resides in Hollister, California.

         4. Defendant SAN BENITO COUNTY is a municipal corporation organized under the laws of the State of California, which includes the department/agency called the SAN BENITO COUNTY SHERIFF'S OFFICE.

         5. Defendant PATRICK TURTURICI is an individual who was employed as the Undersheriff for the SAN BENITO COUNTY SHERIFF'S OFFICE. Plaintiff sues TURTURICI in his official and individual capacities.

         6. Defendant TONY LAMONICA was and is employed as a Sergeant for the SAN BENITO COUNTY SHERIFF'S OFFICE. Plaintiff sues LAMONICA in his official and individual capacities.

         7. Plaintiff is ignorant of the true names and capacities, whether individual, corporate or otherwise of DOES 1 through 20 herein, and prays leave of Court to insert the true names and capacities of such Defendants when they become known or ascertained together with appropriate charging allegations.

         8. Plaintiff is informed and believes that at all relevant times defendants were the agents, servants, and employees of their codefendants, and that these defendants, in doing the things alleged in this Complaint, were acting in the course and scope of their authority as such agents, servants, and employees, and were acting with the permission and consent of their codefendants.

         9. In doing the acts and/or omissions alleged herein, defendants acted under color of authority and/or under color of law to deprive the plaintiff of his rights under the United States Constitution.

         10. The individual defendants carried out the actions complained of in their individual capacities, and/or in the course and scope of their employment with the SAN BENITO COUNTY'S SHERIFF'S OFFICE. Defendants acted in concert, conspired and/or joined in a common goal to cause the harm and damages alleged below. Defendants are jointly and severally liable for any damage awards.

         STATEMENT OF FACTS

         11. Plaintiff Brett Johnson and his ex-wife Mary Johnson have four children, two girls and two boys. In this complaint, the children shall be referred to by their age, from youngest to oldest, as "youngest daughter, " "youngest son, " "elder daughter, " and "eldest son."

         12. On December 28, 2008, Mary Johnson's request to dissolve her marriage to Brett Johnson was finalized with a 50-50 joint-custody agreement and attendant child-support payments.

         13. Plaintiff Brett Johnson has been employed as a law-enforcement officer for over twenty years. At all relevant times, plaintiff worked as a police officer for the San Jose City Police Department.

         14. Prior to July 2010, plaintiff's youngest son had been disobedient, defiant, and physically aggressive with his father including having kicked a hole in his father's wall. On numerous occasions, Brett Johnson sought his ex-wife's permission for their youngest son to obtain mental-health counseling because of his misconduct, which she refused.

         15. In July 2010, Mary Johnson and plaintiff's four children lived with plaintiff's ex-wife and fiance, Mike Howard.

         16. On July 17, 2010, Brett Johnson had custody of his two minor children-his youngest 15-year old son and youngest 12-year old daughter. That morning, the plaintiff insisted that his youngest son join his father and sister on an outing to pick up a new pig so the family could raise and show it in the annual County Fair. Youngest son disobediently refused to go with his father and sister, was physically defiant with his father, and tried to avoid taking responsibility for his actions by going to the neighbors' home. When youngest son refused to leave the neighbors' home, the plaintiff grabbed his arm, placed him in the family vehicle, and insisted his son not endanger the family by throwing a tantrum in the vehicle while they traveled to pick up the pig. When they returned, Mary Johnson picked up youngest son, called law enforcement, and alleged child abuse against the plaintiff.

         17. Deputy Marc Williams and Sgt. Uribe from the SAN BENITO COUNTY SHERIFF'S OFFICE responded and interviewed plaintiff's youngest son and ex-wife. Mary Johnson requested the officers immediately obtain an Emergency Protective Order, so they did.

         18. Later that day Deputy Williams and Sgt. Uribe interviewed the other percipient witnesses-Brett Johnson, his youngest daughter, and the neighbors.

19. Deputy Williams and Sgt. Uribe tape-recorded their interview with Brett Johnson.

         20. After Deputy Williams and Sgt. Uribe completed all of their interviews on the date of the incident, July 17, 2010, they sought to rescind the Emergency Protective Order they had previously requested on behalf of plaintiff's ex-wife, Mary Johnson.

         21. Deputy Williams wrote in his report as follows:

After completing the interviews... it appeared the injuries the victim received were more by circumstance than by an intentional act and base[d] on the evidence, the suspect was not going to be taken into custody as previously thought.

         Deputy Williams also reported the plaintiff's ex-wife's child-abuse allegation was inconclusive because of insufficient evidence.

         22. As a result of the investigation on July 17, 2010, the investigating officers concluded there was insufficient evidence that a crime had been committed and therefore they had no probable cause. Rather, the interaction between Brett Johnson and his youngest son on July 17, 2010 involved a parent using lawful force to control and contain an out-of-control, defiant, disobedient, and at-times violent child.

         23. Brett Johnson alleges on information and belief that on and before July 17, 2010, Mike Howard enjoyed a personal relationship with then-Undersheriff of the SAN BENITO COUNTY SHERIFF'S OFFICE, defendant PATRICK TURTURICI.

         24. On July 21, 2010, Brett Johnson was threatened by Mary Johnson's attorney that she "no longer agrees" with the previous custody arrangement, and, hence, the attendant child-support payments related to the 50/50 custody agreement.

         25. In July 2010 TURTURICI was running for the elected position of SAN BENITO COUNTY Sheriff/Coroner. Brett Johnson alleges on information and belief that TURTURICI was currying favor with individuals who he believed could help him get elected. This included Mike Howard and Mike Howard's family.

         26. Plaintiff alleges on information and belief that TURTURICI promised defendant TONY LAMONICA, who was then the Supervisor of the Investigations Unit of the SAN BENITO COUNTY SHERIFF'S OFFICE, a promotion to Lieutenant or Undersheriff if TURTURICI were to be elected as SAN BENITO COUNTY Sheriff/Coroner.

         27. Brett Johnson alleges on information and belief that Mike Howard conspired with TURTURICI to exercise TURTURICI's influence to seek a common objective-to cause Brett Johnson to be charged, arrested and prosecuted for child abuse relating to plaintiff's interaction with his youngest son on July 17, 2010. To achieve their goal, TURTURICI caused TONY LAMONICA to re-open and conduct a biased and result-oriented investigation to fabricate and suppress evidence to establish probable cause against the plaintiff.

         28. Absent new evidence about the events of July 17, 2010, on July 19, 2010 at 10:00 a.m. TURTURICI caused LAMONICA to fabricate and suppress evidence by: (1) using coercive interview techniques to gather one-sided statements from plaintiff's children by re-interviewing the youngest son and daughter and interviewing the two older children who were not witnesses to the events of July 17, 2010; (2) not re-interviewing the other percipient witnesses (Brett Johnson and the neighbors); and (3) omitting exculpatory evidence.

         29. Defendants also tampered with and altered the digital recording of plaintiff's July 17, 2010 tape-recorded interview to remove exculpatory information including a history of the children's inappropriate behavior and the plaintiff's imposition of reasonable discipline. Tampering with evidence is a violation of police practices and the law including Penal Code Sections 118.1, 132, 134, 135, 141(b), and 182.

         30. Defendants caused Brett Johnson to be booked/arrested for child abuse on September 14, 2011.

         31. Defendants also caused Brett Johnson's name to be submitted to criminal-justice data bases, including but not limited to CACI (Child Abuse of California Index) and CII (California Criminal History), based on fabricated and suppressed evidence. These databases preclude the plaintiff from enjoying numerous personal and professional rights and benefits.

         32. Brett Johnson alleges on information and belief that he would not have been reported to database(s), charged, booked, arrested or prosecuted without an agreement between TURTURICI and Mike Howard as described herein and/or TURTURICI's seeking a perceived political or personal gain.

         DAMAGES

         33. As a result of defendants' acts and omissions, the plaintiff has and will continue to sustain losses of familial association and relationship with his children.

         34. As a result of defendants' acts and omissions, the plaintiff has and will continue to sustain losses to reputation, career and promotional opportunities, future earnings and benefits.

         35. As a result of defendants' acts and omissions, the plaintiff has and will continue to suffer humiliation, anxiety, depression, embarrassment, and emotional distress.

         36. As a result of defendants' acts and omissions, plaintiff has and continues to suffer from defendants' interference with his ability to make basic decisions about his future to: participate in community affairs, take advantage of employment opportunities, cultivate family, business and social relationships.

         37. Plaintiff was required to retain counsel and is entitled to reasonable attorneys' fees should he prevail in this action.

         38. The acts and/or omissions of TURTURICI and LAMONICA as alleged in this Complaint, were willful, reckless, malicious, oppressive and/or done with a conscious or reckless disregard for the constitutional rights of the plaintiff. Plaintiff therefore prays for an award of punitive and exemplary damages according to proof.

         CAUSES OF ACTION

         FIRST CAUSE OF ACTION

         [42 U.S.C. § 1983-VIOLATION OF THE FOURTEENTH AMENDMENT RELATING TO DUE PROCESS AS TO ALL DEFENDANTS]

         39. Plaintiff hereby re-alleges and incorporates by reference as though fully set forth herein all paragraphs of this Complaint.

         40. Defendants TURTURICI and LAMONICA conducted a biased and result-oriented investigation which included: re-opening the investigation for retaliatory, bad-faith and unlawful purposes; coercively obtaining testimony from Brett Johnson's children who were not witnesses to the incidents of July 17, 2010; re-interviewing some but not all witnesses; and, tampering with evidence to suppress material exculpatory information provided by Brett Johnson in his tape-recorded statement.

         41. Defendants' egregious conduct intended to injure the plaintiff by causing criminal charges and allegations to be lodged against him was unjustified by any government interest violated plaintiff's due process rights under the Fourteenth Amendment. This abuse of power "shocks the conscious."

         42. The conspiracy and/or TURTURICI'S seeking personal or political gain was the moving force behind the criminal charges and allegations that caused damage and harm to the plaintiff.

         WHEREFORE, Plaintiff prays for relief as set forth herein.

         SECOND CAUSE OF ACTION

         [42 U.S.C. § 1983-EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH AMENDMENT AS TO ALL DEFENDANTS])

         43. Plaintiff hereby re-alleges and incorporates by reference as though fully set forth herein all paragraphs of this Complaint.

         44. Plaintiff alleges on information and belief that defendants caused his arrest and prosecution for bad-faith and unlawful purposes by: coercively obtaining testimony from Brett Johnson's children; not re-interviewing witnesses to the incident; and, tampering with evidence to suppress material exculpatory information provided by plaintiff in his tape-recorded statement. Plaintiff further alleges on information and belief that defendants caused criminal charges to be sought against him based on deliberately fabricated and suppressed evidence.

         45. The plaintiff was treated as a "class of one." Plaintiff was similarly situated to all persons who resided in San Benito County within the jurisdiction of the SAN BENITO COUNTY SHERIFF'S OFFICE. Plaintiff has information and believes he is the only person subject to, and the victim of, a conspiracy between an Undersheriff (TURTURICI) and a private citizen (Mike Howard) as described herein, and/or the victim of TURTURICI'S objective for personal or political gain, and in violation of the law and United States Constitution. This constituted a violation of plaintiff's Equal Protection rights guaranteed under the Fourteenth Amendment.

         46. The conspiracy and/or TURTURICI'S seeking personal or political gain was the moving force behind the criminal charges and allegations that caused damage and harm to the plaintiff alleged herein.

         WHEREFORE, Plaintiff prays for relief as set forth herein.

         THIRD CAUSE OF ACTION

         [42 U.S.C. § 1983-VIOLATION OF THE FOURTH AMENDMENT AS TO ALL DEFENDANTS]

         47. Plaintiff hereby re-alleges and incorporates by reference as though fully set forth herein all paragraphs of this Complaint.

         48. Defendants TURTURICI and LAMONICA conducted a biased and result-oriented investigation to cause a bad-faith arrest which included: re-opening the investigation for retaliatory, bad-faith and unlawful purposes; coercively obtaining testimony from Brett Johnson's children who were not witnesses to the incidents of July 17, 2010; and re-interviewing some but not all witnesses; and, tampering with evidence to suppress material exculpatory information provided by Brett Johnson in his tape-recorded statement. These unlawful law-enforcement techniques were in violation of the Fourth Amendment prohibiting bad-faith arrests.

         49. The conspiracy and/or TURTURICI'S seeking personal or political gain was the moving force behind an arrest based on false, misleading, and suppressed material evidence which caused damage and harm to the plaintiff.

         WHEREFORE, Plaintiff prays for relief as set forth herein.

         FOURTH CAUSE OF ACTION

         [42 U.S.C. § 1983-VIOLATION OF THE FIRST AMENDMENT AS TO ALL DEFENDANTS]

         50. Plaintiff hereby re-alleges and incorporates by reference as though fully set forth herein all paragraphs of this Complaint.

         51. In doing the acts and/or omissions alleged herein, defendants acted under color of authority and/or under color of law to deprive the plaintiff of his rights under the United States Constitution including but not limited to his right to petition and engage in litigation associated with his family under the First Amendment.

         52. The conspiracy alleged herein was intended to chill Brett Johnson's speech and discourage him from pursuing relief through the family-court judicial system and/or be used as a justification for Mary Johnson (and indirectly Mike Howard) to receive increased child-support payments from Brett Johnson. Defendants engaged in conduct designed to chill plaintiff's speech by coercively obtaining testimony from Brett Johnson's children; not re-interviewing witnesses to the incident; and, tampering with evidence to suppress material exculpatory information provided by plaintiff in his tape-recorded statement. Plaintiff further alleges on information and belief that defendants caused criminal charges to be sought against him based on deliberately fabricated and suppressed evidence.

         53. The conspiracy was the but-for cause of the renewed investigation after July 17, 2010 and subsequent criminal charges and allegations described herein.

         54. As a result of the defendants' misconduct, Mary Johnson received additional child-support payments of approximately $500 per month.

         55. The conspiracy was the moving force behind the criminal charges and allegations that caused damage and harm to the plaintiff alleged herein.

         WHEREFORE, Plaintiff prays for relief as set forth herein.

         FIFTH CAUSE OF ACTION

         [42 U.S.C. § 1983-MUNICIPAL LIABILITY]

         56. Plaintiff hereby re-alleges and incorporates by reference as though fully set forth herein all paragraphs of this Complaint.

         57. The SAN BENITO COUNTY SHERIFF'S OFFICE had final policymaking authority from the COUNTY OF SAN BENITO concerning the acts of TURTURICI, LAMONICA and other unnamed co-conspirators who were employed with the SAN BENITO COUNTY SHERIFF'S OFFICE.

         58. On March 11, 2011, Brett Johnson filed an Internal Affairs complaint with the SAN BENITO COUNTY SHERIFF'S OFFICE disclosing the facts in this complaint. Brett Johnson alleges on information and belief that there was an investigation into these allegations that resulted in a finding that the allegations were not sustained.

         59. The SAN BENITO COUNTY SHERIFF'S OFFICE ratified TURTURICI'S and LAMONICA'S acts and the basis for them.

         60. As a result of defendants' acts and omissions the plaintiff was injured and continues to be injured and damaged as alleged herein.

         WHEREFORE, Plaintiff prays for relief as set forth herein.

         JURY DEMAND

         54. Plaintiff hereby demands a jury trial on all issues so triable.

         PRAYER FOR RELIEF

         The plaintiff prays for relief as follows:

1. For compensatory damages and other economic damages according to proof;

2. For general damages according to proof;

3. For an award of punitive damages against the individually-named defendants;

4. For an award of attorney's fees and costs;

5. For injunctive relief to compel defendants to remove Brett Johnson's name from all databases alleging he engaged in any misconduct;

6. For other appropriate injunctive relief designed to remedy the unlawful practices alleged herein; and

7. For such other and further relief as the Court may deem necessary and appropriate.


Summaries of

Johnson v. San Benito County

United States District Court, Ninth Circuit, California, N.D. California
Mar 1, 2013
CV 12-03691 LHK (N.D. Cal. Mar. 1, 2013)
Case details for

Johnson v. San Benito County

Case Details

Full title:BRETT JOHNSON, Plaintiff, v. SAN BENITO COUNTY; PATRICK TURTURICI; TONY…

Court:United States District Court, Ninth Circuit, California, N.D. California

Date published: Mar 1, 2013

Citations

CV 12-03691 LHK (N.D. Cal. Mar. 1, 2013)