Jay C. Carle (modified by HHP)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

 

___________________________________

August Binnaza

Plaintiff                                                            

v.                                                                                        Civil Action No.

Officer Ryan Clay   

&                                                                                   06-0014

Village of Kenilworth

Defendants                                                      

___________________________________ 

COMPLAINT

1.      This is a 42 U.S.C. § 1983 action for violation of Plaintiff’s 4th Amendment rights and an action for common law assault and battery.

2.      Plaintiff seeks compensatory and punitive damages under 42 U.S.C. § 1983, compensatory and punitive damages for common law assault and battery, and reasonable attorney’s fees under 42 U.S.C. § 1988 and state law.

JURISDICTION AND VENUE

3.      Subject matter jurisdiction over 42 U.S.C. § 1983 is properly in the United States District Court pursuant to 28 USC §1331 since the complaint alleges constitutional and federal statutory violations against the defendant.

4.      This court also has subject matter jurisdiction over the claims of assault and battery pursuant to 28 U.S.C. 1367(a); the 42 U.S.C. § 1983 violation and tort liability for assault and battery arise from a common nucleus of operative fact.

5.       The venue is appropriate in the Northern District of Illinois where the violations took place pursuant to 28 U.S.C 1391 (b)(2).

THE PARTIES

6.      The defendant, Officer Ryan Clay, a citizen of Wisconsin, acting in his official capacity as a police officer, is a person within the meaning or 28 U.S.C 1983.

7.      The defendant, Village of Kenilworth, is a person within the meaning of 28 U.S.C 1983.

8.      The plaintiff, August Binnaza, a citizen of Illinois, is a law-abiding citizen of the United States.

COUNT 1 - OFFICER CLAY’S § 1983 VIOLATION FOR ILLEGAL SEIZURE OF THE PLAINTIFF’S PERSON

9.      On or about September 21, 2004 at 3:00 AM Officer Clay illegally seized Plaintiff’s person without probable cause or reasonable suspicion in violation of the 4th Amendment to the United States Constitution.

10.  Officer Clay was acting under the color of state law when he, without probable cause or reasonable suspicion, exercised his authority as a police officer to stop Binnaza in his car while he was lawfully driving on Sheridan Rd, within the city limits of Kenilworth, near the intersection with Kenilworth Avenue.

11.  A reasonable police officer in the defendant’s position would not have stopped Binnaza because Binnaza was not speeding or driving in any way that would cause a reasonable police officer to have reasonable suspicion or probable cause to believe that a crime had been or was being committed.

12.  Binnaza was not free to leave by Officer Clay’s show of authority and was therefore seized within the meaning of the 4th Amendment.

13.   By illegally seizing Binnaza, Officer Clay caused Binnaza, an upstanding citizen of the United States, to suffer a violation of his 4th Amendment right to be secure in his person.

COUNT 2 - OFFICER CLAY’S § 1983 VIOLATION FOR USE OF EXCESSIVE FORCE AGAINST BINNAZA

14.  Officer Clay illegally used excessive and unreasonable force under the circumstances against Binnaza in violation of  Binnaza’s 4th Amendment to right to be secure in his person.

15.  During the illegal stop, Officer Clay’s smacked Binnaza’s hands and snatched Binnaza’s wallet away from him while at the same time raising his flashlight as if to hit Binnaza with it.  Binnaza did nothing to provoke Clay and was in the process of complying with Clay’s request for his driver’s license.  Officer Clay’s conduct under the circumstances was an excessive use of force; a reasonable police officer in Clay’s position would not have used such force.

16.  The excessive use of force by Officer Clay caused Binnaza, an upstanding citizen of the United States, to suffer a violation of his 4th Amendment right to be secure in his person.

17.  In addition, the excessive use of force by Officer Clay caused Binnaza to suffer a concussion, bruised ribs, and a twisted ankle when Binnaza attempted to elude Clay out of extreme fear of being injured by a blow from Clay’s flashlight.

COUNT 3 – THE VILLAGE OF KENILWORTH’S § 1983 VIOLATION FOR ILLEGAL SEIZURE OF THE PLAINTIFF’S PERSON

18.   The Village of Kenilworth caused Binnaza to be subjected to the 4th Amendment violations (illegal seizure and excessive force) because Officer Clay’s actions were part of the customary practices of the Village of Kenilworth police department.

19.   Binnaza has been stopped repeatedly, without cause, by the Kenilworth police.  Such repeated 4th Amendment violations amount to the Kenilworth Police Department’s deliberate indifference to an obvious need for training of its officers, including Officer Clay. This failure to adequately train resulted in Officer Clay’s actions that caused the Plaintiff’s harm.

COUNT 4 – Battery

20.    Officer Clay intentionally caused offensive contact to Binnaza’s person without consent or privilege.

21.   During the illegal stop, Officer Clay intentionally smacked Binnaza’s hands and snatched Binnaza’s wallet away from him while at the same time raising his flashlight as if to hit Binnaza with it.  Binnaza did nothing to provoke Clay and was in the process of complying with Clay’s request for his driver’s license.  Officer Clay’s conduct under the circumstances was an excessive use of force without privilege.

COUNT 4 – Assault

22.  Without consent or privilege, by an overt act directed at Binnaza, Officer Clay caused Binnaza reasonably to believe that he would immediately suffer a battery and Officer Clay possessed the ability to carry out the battery.

23.  During the illegal stop, Officer Clay overtly raised his flashlight as if to hit Binnaza with it.  Binnaza did nothing to provoke Clay and was in the process of complying with Clay’s request for his driver’s license.  Officer Clay’s conduct caused Binnaza to believe that he was about to be struck by a blow from Clay’s flashlight.  As a result, Binnaza attempted to elude Clay out of extreme fear of being injured and fell in the process causing a concussion, bruised ribs, and a twisted ankle

WHEREFORE, Plaintiff Binnaza requests compensatory and punitive damages exceeding $75,000.