IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-CV-743

FELIPE RUBIO

Plaintiff,

v.

JEREMIAH MASON, individually
TYLER PHILLIPS, individually

Defendants.
______________________________________________________________________________

CIVIL RIGHTS COMPLAINT WITH REQUEST FOR TRIAL BY JURY


Plaintiff Felipe Rubio, by and through his attorneys, HOLLAND, HOLLAND EDWARDS &
GROSSMAN, P.C., complains against Defendants and request a trial by jury as follows:
I. INTRODUCTION
1. Felipe Rubio was subjected to excessive force by individual Defendants while
handcuffed behind the back and in police custody in the Ignacio Town Hall.
2. While Plaintiff was in custody under arrest, unarmed, and handcuffed behind his
back, Officer Mason willfully, maliciously and wantonly kicked and broke Mr. Rubios leg.
3. Defendant Phillip was also present at this scene, watched this abuse, and did
nothing to intervene despite sufficient opportunity to do so.
4. These two Defendants then willfully jointly engaged in preparing a knowingly
false official police report in an overt effort to cover up the police brutality and excessive force
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complained of herein. Thus, they falsely asserted that Plaintiff's injuries were self-inflicted,
when they knew they were from being forcefully kicked in his leg.
II. JURISDICTION, VENUE AND NOTICE
5. This action arises under the Constitution and laws of the United States and is
brought pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1988. The Jurisdiction of this Court is
invoked pursuant to 28 U.S.C. 1331, 1343, 2201.
6. This case is instituted in the United States District Court for the District of
Colorado pursuant to 28 U.S.C. 1391 as the judicial district in which all relevant events and
omissions occurred and in which Defendants maintain offices and/or reside.
7. Supplemental pendent jurisdiction is based on 28 U.S.C. 1367 because the
violations of Federal law alleged are substantial and the pendent causes of action derive from a
common nucleus of operative facts.
8. Timely Notice of Claims under the Colorado Governmental Immunity Act has
been given by Plaintiff with respect to the willful and wanton conduct alleged in this lawsuit,
which also violates state law under 24-10-118, C.R.S and Colorado common law.
III. PARTIES
9. At all times relevant hereto, Plaintiff Felipe Rubio was a resident of the State of
Colorado and a citizen of the United States of America.
10. At all times relevant hereto, Defendant Jeremiah Mason was a citizen of the
United States and a resident of the State of Colorado and was acting under color of state law in
his capacity as a law enforcement officer with Ignacio Police Department, 540 Goddard Avenue,
PO Box 459, Ignacio, Colorado 81137 and/or with Town of Ignacio a/k/a The Town Ignacio.
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11. At all times relevant hereto, Defendant Tyler Phillips was a citizen of the United
States and a resident of the State of Colorado and was acting under color of state law in his
capacity as a law enforcement officer employed by the Ignacio Police Department, 540 Goddard
Avenue, PO Box 459, Ignacio, Colorado 81137 and/or with Town of Ignacio a/k/a The Town
Ignacio.
IV. STATEMENT OF FACTS
12. Plaintiff hereby incorporates all of the forgoing paragraphs of this Complaint as if
fully set forth herein.
13. On or about March 16 or 17, 2013, Felipe Rubio was arrested and taken inside the
Town Hall in handcuffs by Defendant Officer Mason and Defendant Officer Phillips.
14. Plaintiff was concerned about his safety with these officers. He therefore
requested that any interaction and conversation be recorded, a request that was denied. He also
requested that he see a Sergeant, which further angered these Defendant officers.
15. Officer Mason cursed and yelled at Plaintiff in response to these reasonable
requests, saying things like Im sick of hearing this fucking shit!
16. Although Plaintiff was handcuffed, and was not being violent or aggressive,
Officer Mason pushed down hard on his shoulders from behind.
17. Then, to purposely knock him to the ground, Defendant Mason viciously kicked
Plaintiff's leg, causing his leg bone to snap and for him to fall down.
18. This unjustified and unprovoked use of force resulted in a major tibial fracture.
19. Plaintiff immediately told Officer Mason that he had broken his leg and asked
him to call an ambulance.
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20. Defendant Mason initially refused to get him medical attention or even
acknowledge the serious injury he had caused.
21. Instead, Defendant Mason told him that helping him would cost the City a lot of
money and, with utter indifference, left him still handcuffed with his broken leg on the floor for
about 20 to 30 minutes in severe pain before finally calling the ambulance that should have been
called immediately.
22. Defendant Mason and Defendant Phillips then willfully conspired to officially
falsely report and lie in their police report that this injury was entirely self inflicted, occurring
after Mr. Rubio was already on the ground.
23. Although Defendants admit that Plaintiff was handcuffed well before he broke his
leg in their reports, this false police report intentionally covers up the fact Officer Mason had
kicked claimant in the leg to take him down, a fact well and fully known to both these officers at
the time.
24. Thus, these individual Defendant officers falsely reported that this injury occurred
when Plaintiff himself kicked a sink cabinet with the front of his lower right leg.
25. More particularly, they invented the following story, falsely stating that:
Officer Mason told Rubio that he would make him sit down if he reused[sic] to
comply. I was observing Officer Mason from the door about twelve feet away
from the corner and door where Officer Mason told Rubio to sit. Officer Mason
finally had to stand at Rubios left side, press on Rubios left shoulder with his
right hand, lift Rubios left leg with his left hand, and push him down into the
corner onto the floor.

Once Officer Mason got Rubio onto the floor, he turned to walk toward me at the
open door of the room. I observed Rubio roll into the corner on his right hip, and
violently kick with his right leg at Officer Masons leg. Rubio missed Officer
Masons leg completely. He did however impact the corner of the sink cabinet
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with the front of his lower right leg. He waited for a moment and then started to
complain that his leg hurt and that we had broken it.

26. Before they wrote their above quoted false report, however, these individual
Defendant officers, apparently excited about or proud of their conduct, told the truth about what
they had actually done to Plaintiff to a paramedic, which was the exact opposite of what they
wrote in their quoted report thereafter.
27. Thus, when they finally decided they could not just leave Plaintiff there
screaming with a broken leg, they called for medical help.
28. EMT caregiver Jacob Stack of the Los Pinos Fire Department responded to the
scene.
29. Upon arrival, Mr. Stack found Plaintiff on the ground with leg pain in his right
lower leg.
30. He was given a true history by these officers about how Officer Mason actually
broke his leg, before they conspired to cover up the truth, which true history this EMT promptly
wrote down in his PreHospital Care Report.
31. In the history section of the PreHospital Care Report, Mr. Stack reported
unequivocally that these IPD Officers told him that the cause of this injury was a kick to the
back of his knees by a police officer, namely, Defendant Mason.
32. Mr. Stack wrote this admission against their interest by the Defendant officers up
as follows:
H Pt in custody at IPD. Per IPD pt was resisting and taken down with a kick to
the back of the knees inside the police station. Pt states he fell to his anterior
side while handcuffed behind his back.

(Emphases supplied.)
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33. After noting this history, Jacob Stack also reported in his actual observations
under A (assessment) that AFT (after the fact) Plaintiff was observed handcuffed behind his
back: A.- ATF pt laying on his R side on the tile floor with his hands cuffed behind his back.
Pt complaining of pain to the R lower leg.
34. From this violent attack by the officers while he was handcuffed, Plaintiff
suffered a spiral fracture of the mid-shaft of the right tibia with displacement, requiring surgery
to repair.
35. On March 25, 2013, Dr. Kimberly Perry operated on Plaintiffs broken leg,
performing a closed reduction IM nailing right tibia fracture, which has required ongoing care
and treatment, including rehabilitation, with continuing sequela and functional impacts and
limitations for Mr. Rubio, who had to use a walking brace and cane until just recently.
36. Here are two pictures showing Plaintiff's fracture injuries and then the surgical
repairs:

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37. These Defendant officers conduct violated claimants federal civil rights under
the Fourth Amendment to the U.S. Constitution as this claim involves force leading up to and
including an arrest which occurred before there was any judicial determination of probable
cause as a prerequisite to the extended restraint of his liberty following arrest and or
alternatively, if there was such a judicial probable cause determination, under the 14
th

Amendment to the Constitution to be free from unreasonable seizures and excessive force.
38. This intentional and knowing use of excessive force also involves willful and
wanton conduct by Defendant Mason in violation of 24-10-118, C.R.S.
39. As a proximate result of Defendants unlawful conduct, Plaintiff has suffered
actual severe physical and emotional injuries, and other damages and losses as described herein,
entitling him to compensatory and special damages, in amounts to be determined at trial.
40. He has ongoing impairments, dysfunctions and limitations including decreased
mobility and use of his injured leg, which still affects his daily activities.
41. As a further result of the Defendants unlawful conduct, Plaintiff has accrued
special damages, including medically related charges and expenses for surgery and therapies and
is still continuing to incur further medical and other special damages related expenses, in total
amounts to be established at trial as to which there are subrogation interests.
42. Plaintiff continues to suffer ongoing emotional distress and physical pain from his
arrest and the unreasonable brutalizing excess force employed during his unconstitutional seizure
and arrest.
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43. Plaintiff is also entitled to punitive damages on all of his federal claims against
the individual Defendants personally to redress their willful, malicious, wanton, reckless conduct
and their willful failure to intervene and attempted cover-up of this blatant civil rights violation.
V. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF
42 U.S.C. 1983 Excessive Force in violation of the Fourth Amendment or, alternatively
in violation of the Fourteenth Amendment including Failure to Intervene
(Plaintiff against Defendant Mason and Defendant Phillips)
44. Plaintiff hereby incorporates all of the forgoing paragraphs of this Complaint as
if fully set forth herein.
45. 42 U.S.C. 1983 provides that:
Every person, who under color of any statute, ordinance, regulation, custom or
usage of any state or territory or the District of Columbia subjects or causes to be
subjected any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or immunities secured by the
constitution and law shall be liable to the party injured in an action at law, suit in
equity, or other appropriate proceeding for redress . . .

46. Plaintiff in this action is a citizen of the United States and the individual police
officer Defendants to this claim are persons for purposes of 42 U.S.C. 1983.
47. Defendants to this claim, at all times relevant hereto, were acting under the color
of state law in their capacity as Ignacio police officers and their acts or omissions were
conducted within the scope of their official duties or employment.
48. At the time of the complained of events, Plaintiff had a clearly established
constitutional right under the Fourth Amendment to be secure in his person from unreasonable
seizure through objectively unreasonable excessive force by law enforcement officers under the
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totality of the circumstances because he was then an arrestee detained without a warrant prior to
any probable cause hearing before a judicial officer.
49. Alternatively, if at the time of the complained of events, contrary to Plaintiffs
awareness, there had already been a judicial determination of probable cause as a prerequisite to
Plaintiffs extended restraint of his liberty following arrest pursuant to warrant, Plaintiff also had
a clearly established constitutional right under the Fourteenth Amendment to be free from the use
of excessive force that amounts to punishment, that was inspired by malice or by unwise or
excessive zeal amounting to an abuse of official power that shocks the conscience or by malice
rather than mere carelessness.
50. Solely in the event that this case arises under the 14
th
Amendment rather than the
4
th
Amendment, then, alternatively, these Defendants used far too much force for the
circumstances and any need presented, caused Plaintiff severe injuries thereby and were acting
with improper motives and malice towards him.
51. At the time of the complained of events, Plaintiff also had a clearly established
constitutional right to police protection while in police custody by Defendant Phillips, who had a
duty to protect him from constitutional violations by fellow officers but who did not intervene to
protect him or take steps to prevent another law enforcement officials use of excessive force,
despite opportunity.
52. Any reasonable police officer knew or should have known of these rights at the
time of the complained of conduct as they were clearly established at that time.
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53. Defendants actions, as described herein, were objectively unreasonable in light of
the facts and circumstances confronting and/or known to them and violated these Fourth
Amendment rights of Plaintiff.
54. It was not objectively reasonable to kick and break the leg of Plaintiff, who was
known to be unarmed, under arrest, handcuffed behind his back, in no way attempting to escape
or flee, and not posing a threat to the physical safety of the officer or others.
55. Officer Defendants actions and use of force, as described herein, were also
malicious and/or involved reckless, callous, and deliberate indifference to Mr. Rubio's federally
protected rights.
56. Observing Defendant Phillips took no reasonable steps to protect Plaintiff from
the objectively unreasonable excessive force of his fellow officer despite opportunity and his
being in a position to do so and instead chose to do nothing and then actively attempted to cover
up what he had witnessed.
57. Defendants unreasonably engaged in the conduct described by this complaint
willfully, maliciously, and in reckless disregard of Plaintiffs federally protected constitutional
rights with conscious awareness that they would thereby cause Plaintiff severe physical and
emotional injuries.
58. The complained of acts or omissions of individual Defendants were clear
proximate causes and moving forces behind Plaintiffs injuries.
59. The acts or omissions of Defendants as described herein deprived Plaintiff of his
constitutional rights and caused him severe bodily injury and other damages.
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60. These individual Defendants are not entitled to qualified immunity for the
complained of conduct.
61. As a proximate cause and result of Defendants unlawful conduct, Plaintiff has
suffered actual physical bodily and emotional injuries, and other damages and losses as described
herein entitling him to compensatory and special damages, in amounts to be determined at trial.
These injuries include, but are not limited to, loss of constitutional and federal rights, physical
injuries, impairments, great pain and emotional distress.
62. As a further result of the Defendants unlawful conduct, Plaintiff has incurred
special damages, including medically related charges and expenses for surgery and related care
and may continue to incur further medically and other special damages related expenses, in
amounts to be established at trial.
63. Plaintiff is further entitled to attorneys fees and costs pursuant to 42 U.S.C.
1988, pre-judgment interest and costs as allowable by federal law.
64. In addition to compensatory, economic, consequential and special damages,
Plaintiff is entitled to punitive damages against each of the individually named Defendants under
42 U.S.C. 1983, in that the actions of each of these individual Defendants have been taken
maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of
Plaintiff.
65. Because of their willful participation and actions in concert in this joint activity,
each of these Defendants are liable to Plaintiff for the proximately caused and resulting injuries
and damages complained of herein.

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SECOND CLAIM FOR RELIEF
Willful and Wanton Battery Against Officer Mason
(Plaintiff Against Officer Mason only)

66. Plaintiff hereby incorporates the forgoing paragraphs of this Complaint as if
fully set forth herein.
67. Defendant Mason is a public employee within the meaning of the Colorado
Government Immunity Act, C.R.S. 24-10-103.
68. This Defendant is not entitled to immunity under the Colorado Government
Immunity Act because his acts and omissions were willful and wanton within the meaning of
C.R.S. 24-10-105(1) and 24-10-118.
69. This Defendant was acting within the scope of his employment when he
intentionally committed such willful and wanton acts and omission that created an unreasonable
risk of proximately causing Plaintiff the severe and persisting physical and emotional injuries,
damages and losses set forth hereinabove.
70. As afore-alleged, this Defendants complained of actions resulted in physical
contact with the Plaintiff, Defendant Mason intended to make harmful or offensive physical
conduct with Plaintiff, and this conduct was physically harmful and offensive.
71. Defendant to this claim was consciously aware that his willful and wanton overt
acts or omissions were creating unconsented harm, offensive contact, and very serious bodily
injury and damage to the bodily integrity of Plaintiff and yet he acted and omitted to act,
heedlessly, recklessly, and/or outrageously, in reflective conscious disregard of and without
regard to the rights, bodily integrity and safety of Plaintiff, purposely causing this harm and
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injury to continue and then watching Plaintiff screaming and crying in pain and ignoring his
broken leg to save money on calling an ambulance.
72. Individual Defendant Mason thereby willfully and wantonly caused these
physical and emotional injuries to Plaintiff.
73. As a direct and proximate result of Defendants willful and wanton conduct in
committing batteries against him, Plaintiff was severely injured, traumatized, and is suffering
ongoing physical injuries, harm and emotional distress which requires ongoing care and
treatment including surgeries and has ongoing limitations, impairments and impingements in his
functional capacities.
74. Plaintiff is therefore entitled to general and compensatory damages for such
injuries, pain and suffering, physical impairment and disability as well as to special damages for
any medical and health care related expenses including to satisfy asserted lien interests by the
United States of America, all in amounts to be proven at trial.
75. There is no cap under the Governmental Immunity Act on this state common law
battery claim as Defendants acts and omissions in this case were willful and wanton within the
meaning of C.R.S. 24-10-118.
76. Plaintiff hereby gives notice that he may be seeking exemplary damages for the
willful and wanton acts of this individual Defendant on this state law claim upon suitable
amendment.
77. This Defendant is not entitled to pro rata liability under 13-21-111.5, C.R.S.
because he was jointly acting pursuant to a tacit agreement and a common or joint plan to
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brutalize Plaintiff with the other named Defendant, all without reasonable justification for
employment of such grossly excessive force on Plaintiff.
VI. PRAYER FOR RELIEF

Plaintiff prays that this Court enter judgment for the Plaintiff and against each of the
Defendants and grant:
A. Compensatory and consequential damages, including damages for physical
injuries, impairment, loss of function, functional impairments and disability, emotional
distress including but not limited to upset, anger, flashbacks, loss of trust, humiliation,
loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an
amount to be determined at trial;
B. Special damages including for all past and future health and medical care charges
in an amount to be determined at trial including sums to satisfy any lien interests;
C. Punitive damages on all federal claims allowed by law against individual
Defendants in amounts to be determined at trial;
D. Attorneys fees and the costs associated with this action under 42 U.S.C. 1988,
including expert witness fees, on all federal claims and state claims as allowed by law;
E. Costs on state law claims;
F. Pre- and post-judgment interest at the lawful rate;
G. Any further relief that this court deems just and proper, and any other appropriate
relief at law or in equity or as may be requested by suitable amendment with respect to
the second claim for relief.
PLAINTIFF REQUESTS A TRIAL BY JURY.

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Respectfully submitted this 12th day of March, 2014.

/s/John R. Holland
John R. Holland
Anna C. Holland Edwards
Erica T. Grossman
Holland, Holland Edwards & Grossman, PC
1437 High Street
Denver, CO 80218

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