This complaint was dismissed primarily for failure to obtain personal jurisdiction over the named defendant, Gregory Parks, a resident of Florida with no California connections. The complaint will be refiled shortly under the Federal Torts Claim Act. Michael R. Mitchell State Bar No. 48348 200 N. Larchmont Boulevard Los Angeles, CA 90004-3707 Phone (213) 469-3995 Fred H. Klonsky State Bar No. 66449 5850 Canoga Avenue, No. 110 Woodland Hills, CA 91367-6530 Phone (818) 992-4933 Attorneys for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FRANK O. HOGAN, by his ) Case No. 97-6331-JMI (AIJx) conservator, Sundra Hines, ) ) COMPLAINT FOR VIOLATION OF ) FEDERAL REGULATION AND Plaintiffs, ) CIVIL RIGHTS ) v. ) (JURY TRIAL DEMANDED) ) GREGORY PARKS, and DOES 1 ) through 100, ) ) Defendants. ) ______________________________ )
Plaintiff alleges the following upon information and belief. FIRST CAUSE OF ACTION AGAINST DEFENDANTS PARKS AND DOE 1 THROUGH 50 FOR VIOLATION OF 28 C.F.R. Section 541.17(i) 1. This action arises under the United States Constitution, Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971), and 28 C.F.R. Section 541.17(i) . The jurisdiction of this court is invoked under 28 U.S.C. Sections 1331 and 1343. [This action does not presently arise under 28 U.S.C. Sections 2671, et seq. nor is the jurisdiction of the court invoked under 28 U.S.C. Section 1346(b). Statutory claims are now on file with the U.S. as a precondition for suit under the Federal Tort Claims Act. If those claims are not resolved and when time for suit is ripe, plaintiff will seek leave to amend this complaint to set forth claims under the Federal Tort Claims Act.] 2. Venue is proper in the Central District of California under 28 U.S.C. Section 1402(b) because plaintiff resides in said judicial district. 3. Plaintiff Frank O. Hogan is an adult, black male born October 25, 1970 who presently resides at Sunset Manor, 2720 Nevada, El Monte, California within the Central District of California. He is represented in this action by his mother, Sundra Hines, his duly appointed and acting conservator of his person and his estate in Superior Court for the State of California, County of Los Angeles Probate Case No. LP 005 484.
4. Defendant Gregory Parks was the Warden at the Federal Correctional Institution in Coleman, Florida. He is sued individually and in his official capacity. 5. The true names or capacities of defendants Does 1 through 100, whether individual, corporate, associate or otherwise, are unknown to plaintiff who therefore sues said defendants by such fictitious names. Plaintiff will amend the complaint to show said defendants' true names and capacities when the same have been ascertained. Plaintiff alleges upon information and belief that all defendants sued herein as Does are in some manner responsible for the acts or omissions herein alleged. The Does are sued individually and in their official capacities. 6. Plaintiff Sundra Hines is the natural mother of plaintiff Frank O. Hogan and Sundra Hines resides at 2782 North Glen Avenue, Altadena, CA 91001. 7. At all times herein mentioned, defendants were acting under color and pretense of statutes, ordinances, regulations, customs and usages of the United States and/or the U.S. Department of Justice, and/or the Federal Bureau of Prisons. 8. In or about 1995, plaintiff was sentenced after conviction for a non-violent crime to incarceration in a federal penitentiary. In about October, 1995, plaintiff was an inmate of the Federal Corrections Institute at Terminal Island, California ("Terminal Island"). 9. In about October, 1995, there was a riot and destruction of government property at Terminal Island. 10. Ten days after the riot, plaintiff was charged in an Incident Report with (1)
rioting, (2) encouraging others to riot, and (3) destroying, altering, or damaging property valued in excess of $100. 11. While plaintiff was still in California, on March 12, 1996 a Discipline Hearing Officer (DHO) hearing was held on the above charges. The conclusion of the Discipline Hearing Officer was "No prohibited act committed: Expunge according to Inmate Discipline PS." 12. 28 C.F.R. Section 541.17(i) required expungement of the Incident Report from plaintiff's file and prohibited its use in a manner "which would adversely affect the inmate . . . . Institution staff may not use the existence of charged but unproved misconduct against the inmate." 13. Does 1 and 2 had the legal duty to expunge the Incident Report from plaintiff's file, but breached that duty by failing to expunge the Incident Report from plaintiff's file. 14. Does 2 and 3 had (a) the legal duty not to use the Incident Report in a manner which would adversely affect plaintiff and (b) the legal duty not to use the existence of charged but unproved conduct against plaintiff. 15. Does 2 and 3 breached the foregoing duties by imposing upon plaintiff a disciplinary transfer to the Federal Correctional Institution in Coleman, Florida (a Medium Security prison) because of plaintiff's alleged "active " participation in the above riot. 16. Does 2 and 3 well-knew that the Incident Report should have been
expunged from plaintiff's file and well-knew that plaintiff's alleged "active" participation in the above riot had not been proven. 17. Defendant Gregory Parks, Warden of Coleman, and Does 4 and 5 had the duties (a) not to use the Incident Report in a manner which would adversely affect plaintiff, and (b) not to use the existence of charged but unproved conduct against plaintiff, but breached those duties by (i) accepting the disciplinary transfer of plaintiff to Coleman, (ii) punishing plaintiff, to wit, housing plaintiff in Administrative Detention status at Coleman, and (iii) transferring plaintiff to a High Security Institution, to wit, the U.S. Penitentiary in Atlanta, Georgia. Defendant Gregory Parks and Does 4 and 5 were fully aware that the Incident Report should have been or had been expunged and that plaintiff's alleged "active" participation in the above riot had not been proven. 18. Does 6, 7 and 8 had the duties (a) not to use the Incident Report in a manner which would adversely affect plaintiff, and (b) not to use the existence of charged but unproved conduct against plaintiff, but breached those duties by (i) accepting the disciplinary transfer of plaintiff to the U.S. Penitentiary in Atlanta, Georgia, and (ii) housing and keeping plaintiff with dangerous, violent inmates at that penitentiary. 19. Does 6, 7, 8, 9, 10, and 11 placed plaintiff in an excessively dangerous and insecure place. 20. By virtue of such placement, Does 6, 7, 8, 9, 10, and 11 had the legal duty to safeguard plaintiff from reasonably foreseeable injury and harm and to provide
plaintiff with a safe and humane environment during incarceration. 21. On or about August 23, 1996, Does 6, 7, 8, 9, 10, and 11 knew or should have known that plaintiff was situated during a "controlled movement" of inmates such that it was reasonably foreseeable that plaintiff would be injured and harmed by other inmates and that plaintiff was not in a safe or humane environment. 22. Notwithstanding such knowledge or putative knowledge, said defendants failed, neglected and refused to take steps to prevent plaintiff from being injured or harmed by other inmates, and failed and refused to place plaintiff in a safe or humane environment. 23. As a direct legal result of the foregoing, and on or about August 23, 1996, another inmate, Doe 12, physically attacked and severely injured plaintiff. 24. As a direct and legal result of the foregoing, plaintiff suffered severe injuries to his mind and person. He has been discharged from custody and is now in a critical care center in Los Angeles County. It appears that he is permanently paralyzed and has life-threatening injuries. 25. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his mind and nervous system, which have caused and which will continue to cause Mr. Hogan great physical, mental, and emotional pain and suffering, all to his general damage in a sum which will be proven at the time of trial. 26. As a further proximate result of the foregoing, Mr. Hogan was required to
and did and will in the future, employ health care practitioners to examine, treat, and care for him, and has and will in the future, incur medical and incidental expenses, including prejudgment interest. The exact amount of such expenses is presently unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. 27. As a further proximate result of the foregoing, Mr. Hogan has been, and will continue to be, prevented from attending to his usual occupation, or any occupation, to his further damage in a sum that he is presently unable to ascertain. Mr. Hogan will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. SECOND CAUSE OF ACTION AGAINST DEFENDANTS PARKS AND DOES 1 THROUGH 50 FOR DEPRIVATION OF CIVIL RIGHTS 28. Plaintiff restates and reiterates the foregoing paragraphs of this complaint as if set forth in full at this point. 29. Plaintiff, as a convicted inmate had the right, under the Eighth Amendment, to reasonable protection from physical violence by fellow inmates. 30. By their actions and inactions, recited below, defendants were deliberately indifferent to plaintiff's right to reasonable protection from physical violence by fellow inmates.
31. Does 1 and 2 had the legal duty to expunge the Incident Report from plaintiff's file, but were deliberately indifferent to plaintiff's right to reasonable protection from physical violence by fellow inmates in failing to expunge the Incident Report from plaintiff's file. 32. Does 2 and 3 had (a) the legal duty not to use the Incident Report in a manner which would adversely affect plaintiff and (b) the legal duty not to use the existence of charged but unproved conduct against plaintiff. 33. Does 2 and 3 were deliberately indifferent to plaintiff's right to reasonable protection from physical violence by fellow inmates by imposing upon plaintiff a disciplinary transfer to the Federal Correctional Institution in Coleman, Florida (a Medium Security prison) because of plaintiff's alleged "active" participation in the above riot. 34. Does 2 and 3 well-knew that the Incident Report should have been expunged from plaintiff's file and well-knew that plaintiff's alleged "active" participation in the above riot had not been proven. 35. Defendant Gregory Parks, Warden of Coleman, and Does 4 and 5 had the duties (a) not to use the Incident Report in a manner which would adversely affect plaintiff, and (b) not to use the existence of charged but unproved conduct against plaintiff. 36. Defendant Gregory Parks and Does 4 and 5 were deliberately indifferent to plaintiff's right to reasonable protection from physical violence by fellow inmates by
(i) accepting the disciplinary transfer of plaintiff to Coleman, (ii) punishing plaintiff, to wit, housing plaintiff in Administrative Detention status at Coleman, and (iii) transferring plaintiff to a High Security Institution, to wit, the U.S. Penitentiary in Atlanta, Georgia.. 37. Defendant Gregory Parks and Does 4 and 5 were fully aware that the Incident Report should have been or had been expunged and that plaintiff's alleged "active" participation in the above riot had not been proven. 38. Does 6, 7 and 8 had the duties (a) not to use the Incident Report in a manner which would adversely affect plaintiff, and (b) not to use the existence of charged but unproved conduct against plaintiff, but were deliberately indifferent to plaintiff's right to reasonable protection from physical violence by fellow inmates by (i) accepting the disciplinary transfer of plaintiff to the U.S. Penitentiary in Atlanta, Georgia, and (ii) housing and keeping plaintiff with dangerous, violent inmates at that penitentiary. 39. Does 6, 7, 8, 9, 10, and 11 placed plaintiff in an excessively dangerous and insecure place. 40. By virtue of such placement, Does 6, 7, 8, 9, 10, and 11 had the legal duty to safeguard plaintiff from reasonably foreseeable injury and harm and to provide plaintiff with a safe and humane environment during incarceration. 41. On or about August 23, 1996, Does 6, 7, 8, 9, 10, and 11 knew or should have known that plaintiff was situated during a "controlled movement" of inmates
such that it was reasonably foreseeable that plaintiff would be injured and harmed by other inmates and that plaintiff was not in a safe or humane environment. Notwithstanding such knowledge or putative knowledge, said defendants failed and refused, with deliberate indifference, to take steps to prevent plaintiff from being injured or harmed by other inmates, and failed and refused, with deliberate indifference, to place plaintiff in a safe or humane environment. 42. As a direct legal result of the foregoing, and on or about August 23, 1996, another inmate, Doe 12, physically attacked plaintiff. 43. Does 9, 10, 11, 13, 14, and 15 had the legal duty to protect plaintiff from attack and physical injury at the hands of another inmate, and to rescue him from such an attack, and had the ability to do so, but, with deliberate indifference, failed and refused to protect or rescue plaintiff. 44. As a direct and legal result of the foregoing, plaintiff suffered severe injuries to his person and mind. He is now in a critical care center in Los Angeles County. It appears that he is permanently paralyzed and has life-threatening injuries. 45. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system, which have caused and which will continue to cause Mr. Hogan great physical, mental, and emotional pain and suffering, all to his general damage in a sum which will be proven at the time of trial. 46. As a further proximate result of the foregoing, Mr. Hogan was required to
and did and will in the future, employ health care practitioners to examine, treat, and care for him, and has and will in the future, incur medical and incidental expenses, including prejudgment interest. The exact amount of such expenses is presently unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. 47. As a further proximate result of the foregoing, Mr. Hogan has been, and will continue to be, prevented from attending to his usual occupation, or any occupation, to his further damage in a sum that he is presently unable to ascertain. Mr. Hogan will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. THIRD CAUSE OF ACTION AGAINST DEFENDANTS PARKS AND DOES 1 THROUGH 50 FOR DEPRIVATION OF CIVIL RIGHTS 48. Plaintiff restates and reiterates the foregoing paragraphs of this complaint as if set forth in full at this point. 49. As a convicted and severely-injured inmate, plaintiff had the right under the Eighth Amendment to adequate medical treatment which was not indifferent to his serious medical needs. 50. Does 6, 7, 8, 16, 17, and 18 through 25 had the legal duty to assure that plaintiff received prompt standard of care medical examination, diagnosis, treatment,
and care. 51. Said defendants, with deliberate indifference to plaintiff's serious medical needs, failed to assure that plaintiff received prompt standard of care medical examination, diagnosis, treatment, and/or care. 52. Does 26 through 50 had the legal duty at to render to plaintiff prompt standard of care medical examination, diagnosis, treatment, and care. 53. Said defendants, with deliberate indifference to plaintiff's serious medical needs, by failed to render to plaintiff prompt standard of care medical examination, diagnosis, treatment, and care. 54. As a direct and legal result of the foregoing, plaintiff suffered severe injuries to his person and mind. He is now in a critical care center in Los Angeles County. It appears that he is permanently paralyzed and has life-threatening injuries. 55. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system, which have caused and which will continue to cause Mr. Hogan great physical, mental, and emotional pain and suffering, all to his general damage in a sum which will be proven at the time of trial. 56. As a further proximate result of the foregoing, Mr. Hogan was required to and did and will in the future, employ health care practitioners to examine, treat, and care for him, and has and will in the future, incur medical and incidental expenses, including prejudgment interest. The exact amount of such expenses is presently
unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. 57. As a further proximate result of the foregoing, Mr. Hogan has been, and will continue to be, prevented from attending to his usual occupation, or any occupation, to his further damage in a sum that he is presently unable to ascertain. Mr. Hogan will seek leave to amend this complaint to set forth the exact amount thereof when the same has been ascertained. PUNITIVE DAMAGES 58. All of the foregoing defendants acted with reckless or callous indifference to plaintiff's federally protected rights, entitling plaintiff to punitive damages according to proof at trial. ATTORNEY'S FEES 59. Plaintiff has transferred and assigned all of his rights to waive, claim, apply for and collect statutory attorney's fees to his attorneys. Should plaintiff prevail by settlement, judgment or otherwise, plaintiff's attorneys shall be entitled to and will apply for an award of attorney's fees to be collected from defendants. WHEREFORE, plaintiff prays for judgment against defendants, and each of them, jointly and severally, as follows: 1. For general damages according to proof at trial 2. For special damages according to proof at trial 3. For punitive damages according to proof at trial
4. For costs and reasonable attorney's fees 5. For such other and further relief as the court deems just and proper. _____________________ MICHAEL R. MITCHELL An Attorney for Plaintiff DEMAND FOR JURY TRIAL Plaintiff demands trial by jury of all issues properly triable by jury. ______________________ MICHAEL R. MITCHELL An Attorney for Plaintiff