Case 1:16-cv-01430-RPM Document 1 Filed 06/13/16 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. ______________________
DONOVAN E. DURAN, SR.,
Plaintiff,
v.
CITY OF LA JUNTA, COLORADO, and
VINCENT FRAKER, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS AN
OFFICER OF LA JUNTA POLICE DEPARTMENT,
Defendants.

COMPLAINT AND JURY DEMAND

Plaintiff, Donovan E. Duran, Sr., complains and alleges as follows:

I.
1.

JURISDICTION

This complaint seeks damages from Defendants pursuant to 42 U.S.C. 1983 and

42 U.S.C. 1988 and the Fourth Amendment to the United States Constitution, made
applicable through the Fourteenth Amendment to the United States Constitution, for
violation of Plaintiff Durans (hereinafter Duran or Durans) civil rights. This court has
jurisdiction over Plaintiffs claims under 28 U.S.C. 1331 and 28 U.S.C. 1343.

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II.
2.

VENUE

The acts or omissions giving rise to Durans claims arose in Otero County,

Colorado. Thus, pursuant to 28 U.S.C. 1391(b), venue is proper in this court in and for
the District of Colorado.

III.
3.

PARTIES

During all times mentioned in this complaint, Plaintiff Duran was, and is, a United

States citizen of Hispanic origin, residing in Otero County, Colorado.

4.

Defendant City of La Junta (hereinafter the City) is a municipal corporation

operating pursuant to the Constitution and laws of the State of Colorado, within
the jurisdiction of the U.S. District Court of the District of Colorado. The City may be
served with process through the City Clerk, 601Colorado Avenue, La Junta, Colorado
81050. The La Junta Police Department is a department of the City.

5.

Defendant Vincent Fraker (hereinafter Officer Fraker) is a Caucasian individual,

residing in Otero County, Colorado, within the jurisdiction of this court. The acts and
omissions of Officer Fraker complained of herein arise from Officer Frakers conduct
and actions while he was acting under color of state law, and pursuant to Officer
Frakers employment and authority as a police officer for the City of La Junta. Officer
Fraker is being sued in both his individual capacity and in his capacity as an
employee/police officer for the City of La Junta. Officer Fraker may be served with
process at the City of La Junta Police Department, 601 Colorado Avenue, La Junta,

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Colorado 81050 or at his principal place of residence, 307 North Swink Drive, La Junta,
Colorado 81050.

6.

Each of the Defendants caused, and is legally responsible for, the incident,

unlawful actions and conduct, injuries and damages to Duran alleged herein by
personally participating in the unlawful conduct or by authorizing or allowing such
conduct explicitly or implicity, or by policies, customs, practices, actions or omissions
that led to the unlawful conduct, by failing to take appropriate action to prevent the
unlawful conduct, by failing to initiate and maintain adequate screening of prospective
employee/police officers, and by failing to initiate and maintain adequate training and
supervision, constituting deliberate indifference to Durans rights, and by ratifying the
unlawful conduct that occurred by agents and officers under their direction and control,
including failure to take remedial or disciplinary action.

7.

In doing the acts and/or omissions alleged herein, Defendants, and each of them,

acted under color of authority and/or color of state law.

IV.

FACTUAL ALLEGATIONS

Plaintiff incorporates by reference all foregoing allegations and further alleges as

follows:

8.

Duran is a 25 year old male of Hispanic origin living in the City of La Junta, Otero

County, Colorado and a born citizen of the United States.

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9.

At the time of the incident giving rise to this action, Duran was an aspiring mixed

martial arts fighter.

10. Duran has had numerous contacts with La Junta and Rocky Ford police officers
and is known to them.

11. On December 5, 2015, Duran called 911 on several occasions, reporting people
trying to enter his grandfathers house and people trying to kill him, and requesting a
ride to his mothers home in Rocky Ford.

12. Pursuant to Durans request, an Otero County Sheriffs deputy transported Duran to
Rocky Ford and Rocky Ford police took him to his brothers home in Rocky Ford.

13. Rocky Ford police officer Paul Carter later stated that Duran was cooperative but
was agitated and mouthy to the Otero County Sheriffs deputy. Officer Carter also
stated that Duran has always been compliant with him.

14. Later that same day Rocky Ford police officers responded to a call from Durans
sister, in Rocky Ford, led by Captain Angelo Griego. Griego knows Duran and is aware
that Duran has had problems with alcohol and marijuana. When he responded to
Durans sisters call he observed that Duran was acting paranoid.

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15. According to Captain Griego, Duran volunteered to be handcuffed and let Griego
lead him to the ambulance for transport to Arkansas Valley Regional Center in La
Junta. Later, Duran let Griego lead him to a hospital bed.

16. Captain Griego states that he has known Duran for about 12 years and that to his
knowledge Duran has never been physical or violent with police.

17. Although Duran left the hospital without authorization and was contacted several
times by police during the next two days, he was never considered to have committed
any criminal act.

18. On the afternoon of December 7, 2015, around 3:21 pm Officer Fraker and two
other officers of the La Junta Police Department responded to a call from Durans
fathers house in La Junta. Upon arrival, Durans father stated that Duran was wigging
out again.

19. Duran was observed running out of the back door of the house, but since Duran
had not committed any criminal offense the officers did not give chase.

20. As Officer Fraker was heading back to the police station in his vehicle, he observed
Duran in the intersection of Fourth Street and Lewis Avenue in La Junta, standing in
front of a truck with his arms extended.

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21. Officer Fraker then asked Duran if he wanted to go to a treatment facility or the
hospital, to which Duran responded that he was getting arrested.

22. Officer Fraker then decided to take Duran to the Arkansas Valley Regional Medical
Center in La Junta. At all times thereafter mentioned herein officer Fraker and his fellow
police officers were acting while in the performance of their duties and within the scope
of their employment.

23. La Junta police officers Ramirez and McMillan handcuffed Duran with hands behind
his back, brought him to Officer Frakers vehicle, searched him, and placed him into the
back seat of Officer Frakers Ford Explorer. Since the vehicle had no cage, Officer
McMillan rode with Officer Fraker. Duran was seat-belted into the rear seat with his
hands cuffed behind his back and they started toward the hospital.

24. According to Officers Fraker and McMillan, while on the way to the hospital, Duran
started biting or chewing on a Tupperware container that was in the vehicle and also
yelling thats not fair and various obscenities.

25. Officers Fraker and McMillan stated that when they arrived at the hospital, they
opened the back door, removed Durans seatbelt and ordered Duran to get out of the
vehicle. Duran replied Dont touch me and, according to the officers, moved his
handcuffed hands downward below his buttocks and behind his knees. Upon observing
this, Officer Fraker states that he reached into the car, grabbed Duran, and rolled him

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out of the car, causing him to land headfirst onto the pavement. The officers then stated
that they moved the handcuffs upward so they were behind Durans back rather than
behind his knees. Meanwhile, Duran kept whispering help me.

26. According to the officers, their response was to drag Duran to the curb and place
him in a crouched position on his knees with his head on the sidewalk while Officer
Fraker went inside the hospital and got a wheelchair and McMillan talked to Duran.

27. Both officers then placed Duran into the wheelchair. Duran slumped forward and
Officer Fraker forced his upper body upright.

28. Duran was then wheeled into the hospital and lifted onto a bed.

29. Officer Fraker admittedly did not tell hospital personnel that Duran had suffered a
head injury while being removed from the vehicle.

30. According to the hospital records, that was not the only thing Officer Fraker did not
tell hospital personnel. Rather, the records state that Officer Fraker only stated that
Duran was hallucinating and intoxicated and should be placed in restraints. The
hospital records state that both officers then left without either Officer Fraker or Officer
McMillan offering hospital personnel any further report or explanation.

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31. As this was taking place, hospital personnel placed Duran in four point restraints
without difficulty.

32. Durans own recollection regarding what transpired was that when the officers and
he arrived at the hospital and he was getting out of the vehicle, Officer Fraker
slammed him to the ground, where he hit the pavement headfirst, then put a knee into
his back and a forearm into the back of his neck, after which they dragged him into the
hospital.

33. According to the publicly released report of the grand jury, that body determined
that Duran sustained serious bodily injury as he was taken to the ground by Sergeant
Vincent Fraker after having heard expert testimony by Dr. Jens Peter Witt that Duran
had sustained a spinal fracture that left him paralyzed from the mid-chest down, with
only partial use of his arms, that when Duran hit the ground his C6 and C7 vertabrae
separated, and that when they came back together they crushed Durans spinal
cord. Dr. Witt further testified that the injury was caused when Duran hit the ground.

34. While Officer McMillan stated that he was nervous that Duran might harm him or
Officer Fraker, he also stated that Fraker was apparently frustrated with having to deal
with Duran multiple times that day.

35. At no time during this incident or subsequently have either Officer Fraker or Officer
McMillan made any known claim that Duran had gotten his handcuffed hands any

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further down from his back than down to the back of his knees, or that he was acting, or
attempting to act, violently toward either of them. Although Officer McMillan apparently
stated to the grand jury that he (McMillan) was nervous that Duran might harm him or
Officer Fraker, neither officer has ever made any known claim that he was in fear of
suffering imminent bodily injury.

36. Likewise, the publicly released report of the grand jury did not make any finding
from the evidence presented to it over a period of three days that either officer Fraker or
officer McMillan were in fear of suffering imminent bodily injury at the time officer Fraker
jerked Duran out of his vehicle headfirst onto the pavement.

37. Upon information and belief, officer Fraker has demonstrated violent tendencies
and temperament in the past, including incidents of domestic violence resulting in his
discharge from employment at a Crowley County correctional facility and a prior La
Junta Police Department refusal of employment, after which officer Fraker was
employed for a time by the Bent County Sheriffs office before successfully reapplying
for employment by the La Junta Police Department.

38. The La Junta Police Chief is the La Junta police departments policymaker
regarding employment screening, hiring, training, and disciplinary actions.

39. Given officer Frakers history, proper screening for his employment as a law
enforcement officer should have included a current psychological evaluation.

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40. Upon information and belief, this was not done at the time of officer Frakers hiring
by the La Junta Police Department.

41. Upon information and belief, La Junta Police Department training of officers does
not include proper training in responding to calls involving persons in crisis or with
obvious mental health problems, including use of force policies and de-escalation
strategies.

PLAINTIFFS FIRST CLAIM FOR RELIEF: 42 U.S.C. 1983PEACE OFFICER

LIABILITY
Plaintiff incorporates by reference all preceding allegations herein and further alleges as
follows:

42. Plaintiff bring this claim against Officer Fraker, both individually and in his official
capacity, pursuant to 42 U.S.C. 1983, seeking economic and non-economic
compensatory damages and punitive damages to the extent allowed by law.

43. The facts of this case show that the force used against Duran was excessive and
unreasonable in light of the circumstances facing Officer Fraker at the time of the
incident in question.

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44. At the time of the incident, Officer Fraker did not have an objective reasonable fear
of imminent bodily harm when he jerked Duran out of his vehicle headfirst while he was
handcuffed from behind in a manner that foreseeably caused him to fall headfirst and
strike his head on the pavement beneath causing serious bodily injury including a
crushed spinal cord causing paralysis.

45. By acting as described above Officer Fraker, while acting under color of state law
violated Durans rights under the Fourth and Fourteenth Amendments of the United
States Constitution and proximately caused Durans serious and permanent injuries and
physical impairment and resulting medical expenses, loss of income, physical and
mental pain and suffering, inconvenience, loss of enjoyment of life, humiliation, and
disability.

46. Officer Frakers use of excessive force as described above herein was outrageous
and shocking to the conscience, in violation of Durans substantive due process rights.

PLAINTIFFS SECOND CLAIM FOR RELIEF: 42 U.S.C. 1983Municipal liability

(CITY)
Plaintiff hereby incorporates all preceding allegations and further alleges as follows:

47. The City of La Junta is also liable to Duran under 42 U.S.C. 1983 for failing
to properly screen, train, and supervise its police officers pursuant to policies,
procedure, practice, and custom followed by it, including failing to require adequate

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background checks and psychological evaluations for all job applicants and failing to
provide adequate training in crisis intervention and de-escalation in situations involving
persons with obvious mental issues. In ignoring the need for proper screening and
training as alleged above, the City acted in manner constituting gross negligence
and/or deliberate and conscious indifference to peoples (including Durans)
constitutional rights to be free from unlawful seizure and objectively unreasonable and
excessive force.

48. The Citys failures as described above were a cause of Durans injuries and
damages resulting from the incident in question, including present and future physical
and mental pain and suffering, medical expenses, loss of income , inconvenience, loss
of enjoyment of life and permanent physical impairment.
V. REQUEST FOR RELIEF
WHEREFORE, Plaintiff requests the following relief:
1. Economic and non-economic compensatory damages against each defendant,
jointly and severally, in an amount to be proven at trial;
2. Punitive and exemplary damages as allowed by law.
3. Costs of suit.
4. Pre- and post-judgment interest as permitted by law.
5. Such other relief as the Court may deem proper.
JURY DEMAND
Plaintiff hereby demands trial to a jury of six (6) persons on all issues joined herein.

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Dated this 13th day of June, 2016.

s/ Durant D. Davidson______
Durant D. Davidson, #3964
Edward Lomena, #45899
McDivitt Law Firm
19 E. Cimarron Street
Colorado Springs, CO 80903
Telephone: (719) 471-3700
E-mail: litigation@mcdivittlaw.com
Attorney for Plaintiff Duran

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