Ferguson v. United States of America Et Al Doc 1 Filed 04 Jun 15 PDF

Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 1 of 43
Robert W. Wright
Attorney At Law
California Bar # 276653
716 Castro Street
Solana Beach, Ca 92075
(858) 353-6591
bob.wright@mac.com

Attorney for Plaintiff
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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MERLE RALPH FERGUSON, an
individual,

Plaintiff,

-v-

UNITED STATES of America, Steve
HETHERINGTON, an individual, Tom
PEROSKY, an individual, DUSM
LANEY, and DOES 1-20 inclusive,

Defendants.
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Case No: '15CV1253 JM DHB

COMPLAINT FOR:

1. FALSE IMPRISONMENT
2. NEGLIGENCE
3. ASSAULT
4. BATTERY
5. INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
6. FOURTH AMENDMENT VIOLATION
7. FIFTH AMENDMENT VIOLATION

JURY TRIAL DEMANDED

Complaint - 1
Plaintiff MERLE RALPH FERGUSON, an individual, alleges upon
2 knowledge with respect to its own acts, and information and belief as to all
3 other matters, as follows:
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1.
Plaintiff in San Diego, California and therefore depriving him of his
Constitutional rights, arising from the service of an unlawful civil
commitment order issued in the Western District of Michigan pursuant to
a civil case brought in diversity.
2.
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disapproval by family, friends, neighbors, and business affiliates who
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learned of his detention, and was otherwise damaged and injured in the
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total sum of $6.3 million dollars. Plaintiff will continue to endure the
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aforementioned damages including forever disrupting and harming
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personal and professional relationships.
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3.
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United States Marshal Service caused actions including false
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imprisonment, negligence, assault, battery, and intentional interference of
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emotional distress.
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4.
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their individual capacity, caused the denial and deprivation of Plaintiffs
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Constitutional rights.
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Plaintiff contends that Defendants unlawfully arrested and detained
Plaintiff was subject to embarrassment, ridicule, scorn, and
Plaintiff alleges that Defendant UNITED STATES, on behalf of the
Plaintiff alleges that individual Defendants, and DOES 1-20, sued in
PARTIES
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5.
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this complaint was, a citizen and resident of the County of San Diego,
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California, located within the Southern District of California.
Plaintiff, Merle Ralph Ferguson, is now, and at all times mentioned in
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Complaint - 2
6.
control over United States Marshal Service (US Marshals).
7.
the appropriate Defendant under the Federal Tort Claims Act. At all times
herein, Defendant UNITED STATES hired, supervised, trained, and
managed licensed law enforcement officers through the United States
Marshal Service.
8.
times material to this complaint to the best of Plaintiffs' information and
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belief, a Deputy US Marshal employed by United States Marshal Service
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and during all times pertinent herein he acted under color of that capacity..
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He is sued individually in his capacity as a federal officer within the
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meaning and scope of Bivens.
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9.
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this complaint to the best of Plaintiffs' information and belief, a Deputy US
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Marshal employed by United States Marshal Service and during all times
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pertinent herein he acted under color of that capacity. He is sued
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individually in his capacity as a federal officer within the meaning and
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scope of Bivens.
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10. DUSM LANEY (hereinafter "LANEY"), was at all times material to this
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complaint to the best of Plaintiffs' information and belief, a Deputy US
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Marshal employed by United States Marshal Service and during all times
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pertinent herein he acted under color of that capacity. He is sued
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individually in his capacity as a federal officer within the meaning and
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scope of Bivens.
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11. Plaintiff does not know the true names and capacities of the
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The UNITED STATES is a governmental entity with jurisdiction and

The United States of America (UNITED STATES or Government) is
Steve HETHERINGTON (hereinafter "HETHERINGTON"), was at all
Tom PEROSKY (hereinafter "PEROSKY"), was at all times material to
Complaint - 3
Defendants sued herein as Does I through 20, inclusive, and therefore sues
these Defendants by their fictitious names. Plaintiff will amend this
complaint to allege their true names and capacities when known. Plaintiff
believes and based on this belief allege that each of the fictitiously named
Defendants is responsible in some manner for the occurrences alleged
herein.
HETHERINGTON, PEROSKY, LANEY, and DOES 1-20 are also hereinafter
referred to as Individual Agents or Individuals.
JURISDICTION AND VENUE
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12. Tort claims against Defendant UNITED STATES brought pursuant to
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The Federal Tort Claims Act including 28 U.S.C. 1331, 1332, 1343,
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1346(b), 2671 et seq., and the constitutional, statutory, and common
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laws of the California.
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13. Constitutional claims against Individual Agents arise under Bivens v.
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Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
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(1971), and jurisdiction is conferred on this Court by 28 U.S.C. 1331.
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14. Plaintiff further invokes this Court's pendent jurisdiction over any
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and all state law claims and causes of action that derive from the same
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nucleus of operative facts that give rise to the federally based claims and
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causes of action pursuant to 28 U.S.C.A. 1367.
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15. The acts and omissions complained of herein occurred within the
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Southern District of California. Thus, venue is properly laid in this court.
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16. On or about May 6, 2014, well within the time allowed by the Federal
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Tort Claims Act (Title 28 U.S.C.A. Section 2861 et seq.), Plaintiff presented
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and filed an administrative claim (claim) for damage and injury against
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Complaint - 4
Defendant UNITED STATES including $2.1 million in lost business and $4.2
million in personal injury damages arising out of the above-described
circumstances. A true and correct copy of the claim is attached to this
complaint, marked Exhibit 1, and incorporated by reference. The claim
was presented and filed in the manner prescribed by law. SEE EXHIBIT 1.
17. Defendant UNITED STATES failed to admit or deny the claim within
the six month period of time following Plaintiffs service of the claim.
18. This suit is filed against UNITED STATES, PEROSKY, HETHERINGTON,
LANEY and DOES 1-20 in the appropriate Federal district court within the
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time period provided by federal law.
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GENERAL ALLEGATIONS
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19. Plaintiff is a well-respected businessman, decorated war veteran with
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two tours in Vietnam, family man and upstanding member of his
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community. He had no prior criminal record. Plaintiff is an officer and
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director of several U.S. corporations, all in good standing.
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20. Plaintiff was a party in a civil breach of contract suit brought in
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diversity in the U.S. District Court Western District of Michigan. [Korrey v.
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Ferguson et al, Case No. 1:10-CV-755)].
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21. On August 30, 2012, the Court found Plaintiff in civil contempt for
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failure to produce certain financial records and submit to the opposing
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(private) partys debtor examination. (This case was subsequently
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dismissed).
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22. On December 28, 2012 a civil commitment order (civil commitment
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order or bench warrant) was issued in the Western District of Michigan
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for the arrest of Plaintiff. SEE EXHIBIT 2.
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Complaint - 5
23. The bench warrant and attached orders clearly indicate Plaintiffs
offense as one of civil contempt arising from a private action for breach
of contract brought in diversity. Id.
24. UNITED STATES employed and trained the Individual Agents
responsible for the actions alleged in this complaint.
25. An order committing a person for civil contempt in a diversity case
may only be served in the state where the issuing court is located or
elsewhere in the United States within 100 miles from where the order was
issued. [Fed Rule Civ. Pro. 4.1(b)]
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26. An order of civil commitment of a person held to be in contempt of a
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decree or injunction issued to enforce the laws of the United States may be
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served and enforced anywhere in the United States. An order of civil
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commitment of a person held to be in contempt of a decree or injunction
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not involving the enforcement of federal law may only be served at any
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place within the state in which the district court is located, or at any place
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outside of the state that is within 100 miles of the courthouse. USMS
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Policy Directive 11.3. SEE EXHIBIT 3.
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27. Defendants service of civil commitment order (bench warrant or
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civil commitment order) was expressly restricted by federal law, rule of
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civil procedure, and US Marshal policy to limit jurisdiction to the
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geographical boundaries of the Western District of Michigan or 100 miles
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from the Western District of Michigan Courthouse.
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28. Plaintiff resides in San Diego County, California, which is separated
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from the Western District of Michigan by at least six states, three time
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zones, and approximately 1,700 miles.
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29. Plaintiff does not reside within the Western District of Michigan or
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Complaint - 6
100 miles from the Western District of Michigan Courthouse.
30. Plaintiff has never resided within the Western District of Michigan or
31. In January of 2013 Defendant PEROSKY contacted Plaintiff to demand
he voluntarily travel to Michigan and surrender to US Marshal custody.
32. On at least six occasions prior to Plaintiffs arrest, beginning January
15, 2013, Plaintiffs counsel contacted PEROSKY and emphatically
conveyed that federal law unambiguously prohibits service of the civil
commitment order upon Plaintiff while residing in California, or anywhere
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else outside the state of Michigan or 100 miles from the Western District
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of Michigan Courthouse.
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33. Defendants PEROSKY and HETHERINGTON conveyed and maintained
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the threat to track Mr. Ferguson down, arrest, remove from California,
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and return Plaintiff to the Western District of Michigan.
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34. On May 21, 2013, Defendants UNITED STATES, PEROSKY and
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HETHERINGTON requested assistance from the UNITED STATES Marshal
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Service, Southern District of California in locating and arresting Plaintiff.
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SEE EXHIBIT 4.
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35. At all material times, Defendant UNITED STATES was aware federal
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law prohibited the US Marshal Service and Individuals from serving the
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civil commitment order and subsequent arrest of Plaintiff in California.
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36. At all material times, Defendant PEROSKY was aware federal law
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prohibited the US Marshal Service from serving the civil commitment
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order and subsequent arrest of Plaintiff in California.
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37. At all material times, Defendant LANEY was aware federal law
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prohibited the US Marshal Service from serving the civil commitment
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Complaint - 7
38. At all material times, Defendant HETHERINGTON was aware federal
law prohibited the US Marshal Service from serving the civil commitment
39. On September 13, 2013, at or around 6:00am, Defendants UNITED
STATES, LANEY and DOES 1-10 entered Plaintiffs residence in San Diego
County, California. SEE EXHIBIT 2.
40. Despite total absence of territorial jurisdiction, Defendants proceeded
to locate, serve, and arrest Plaintiff pursuant to the civil commitment
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order issued in the Western District of Michigan.
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41. Plaintiffs roommates were awakened and questioned by UNITED
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STATES, LANEY and DOES 1-10. SEE EXHIBIT 4.
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42. Defendants were informed of Plaintiffs high blood pressure condition
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however refused to retrieval Plaintiffs prescription medication.
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43. Approximately fifteen minutes after Plaintiffs arrest, Defendants
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UNITED STATES, LANEY and DOES 1-10 forcefully transported Plaintiff to
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GEO Corrections Western Region Detention Facility in San Diego,
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California. SEE EXHIBIT 4.
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44. Plaintiff was booked, fingerprinted, and forced to endure full body
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and cavity searches on multiple occasions while detained.
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45. Plaintiff suffered near daily occurrences of dangerously high blood
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pressure requiring medical care and assistance, and was admitted to the
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medical ward on at least three occasions. Plaintiff was never provided his
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doctor prescribed medication.
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46. Plaintiff was subject to multiple strip searches following each and
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every visitor meeting.
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Complaint - 8
47. On September 17, 2013 a detention hearing was held in the Southern
District of California where the court ordered Plaintiff to be held in
custody without bail pending a Removal/ID hearing. Bail was denied. [Dkt
#10, USA v. Ferguson, Case # 3:13-MJ-03470].
48. Plaintiff was not charged with a crime.
49. Plaintiff did not consent to UNITED STATES physical contact
including
fingerprinting, detention and strip searches.
50. On October 24, 2013, Plaintiff filed a Petition for Writ of Habeas
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Corpus in the Southern District of California challenging his illegal arrest
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and detention for lack of jurisdiction. [Dkt #1, Ferguson v. Noonan et al,
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Case # 3:13-CV-02580]. SEE EXHIBIT 5.
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51. On Friday, November 1, 2015, the Court held an unscheduled
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telephonic hearing and ordered Plaintiffs immediate release from
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custody. SEE EXHIBIT 6.
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52. Plaintiff was released from US Marshal custody at approx. 10:00 pm
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the same day.
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53. Plaintiff was detained for fifty-one days, from September 13, 2013 to
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November 1, 2013.
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54. Plaintiff was arrested as if he was a fugitive who had fled the state of
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Michigan to avoid prosecution for a crime and was detained without being
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charged with an offense against the United States.
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55. Plaintiff expended over $60,000 in legal services.
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56. As a result of Defendants actions, Plaintiff was subject to
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embarrassment, ridicule, scorn, and disapproval by family, friends,
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neighbors, and business affiliates who learned of his detention, and was
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service,
arrest,
handcuffing,
Complaint - 9
transportation,
booking,
otherwise damaged and injured in the total sum of $6.3 million dollars.
Plaintiff will continue to endure the aforementioned damages including,
forever disrupting and harming personal and professional relationships.
DISCRETIONARY FUNCTION DOES NOT PROVIDE IMMUNITY
57. 28 U.S.C. 2680(a) sets forth an exception under the FTCA known as
the Discretionary Function. [28 U.S.C. 2680(a)].
58. When the government's action is contrary to established
governmental policy, as expressed or implied by statute, regulation, or
agency guidelines, then no discretionary function can apply. See United
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States V. Gaubert, 499 U.S. 315 (1991).
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59. Further, when federal investigations go so far afield from established
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policy and lawful authority as to endanger citizens' rights and safety,
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discretionary immunity unquestionably does not apply.
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60. Analysis of the Discretionary Function set forth in 28 U.S.C. 2680(a)
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is based on a Two-Prong Test to determine the applicability of the
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Discretionary Function Exception, and in the event both prongs are
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satisfied, the Discretionary Function Exemption is applied and the Court of
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Venue will lack subject matter Jurisdiction. See U.S. Aviation Underwriters,
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Inc. v. United States, 562 F.3d 1297, 1299 (11 th Cir. 2009).
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61. The First Prong determines whether or not the challenged acts are
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discretionary in nature- meaning whetheror not the acts involve an
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element judgment or choice. See 499 U.S. at 322.
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62. This prong is not satisfied if the Federal statute, regulation, or policy
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specifically prescribes a course of action for an employee to follow. See
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OSI v. United States, 285 F. 3d 947, 952 (11th Cir. 2002) (quoting Berkowitz
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Complaint - 10
v. United States, 486 U.S. 531, 534 (1988)) (when statutes, policy, or
mandatory regulations dictate the actions of employees, there is not
discretion to deviate from the prescribed course of action and the
exception does not apply).
63. UNITED STATES must obey Federal Regulation, Statute, and Policy
and use Due Care in the exercise of duties as prescribed under Federal
Regulation, Statute, and Policy, in accordance with the First Prong of the
Discretionary Function Analysis.
64. As it relates to application of the First Prong of the Discretionary
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Function Exception to the Claims under the FTCA set forth herein, UNITED
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STATES violated at least one federal statute, one federal rule, and US
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Marshal Service Policy. Specifically;
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a. Except as otherwise provided by Federal Law or Rule of
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Procedure, the U.S. Marshal Service shall execute all lawful writs,
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process, and orders issued under the authority of the United
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States, and shall command all necessary assistance to execute its
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duties. [28 U.S.C. 566]
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b. Defendants violated Fed Rule Civ. Pro. 4.1(b), which provides an
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order committing a person for civil contempt in a diversity case
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may only be served in the state where the issuing court is
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located or elsewhere in the United States within 100 miles from
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where the order was issued. See SD Protection, Inc. v. Del Rio,
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587 (E.D.N.Y. 2008); Spectacular Venture, L.P. v. World Star
24
International, Inc., 927 F.Supp. 683 (1996). [Fed Rule Civ. Pro.
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4.1(b)]
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c. Defendants violated USMS Policy Directive 11.3(n)(2), which

Complaint - 11
states An order of civil commitment of a person held to be in
contempt of a decree or injunction issued to enforce the laws of
the United States may be served and enforced anywhere in the
United States. An order of civil commitment of a person held to be
in contempt of a decree or injunction not involving the
enforcement of federal law may only be served at any place within
the state in which the district court is located, or at any place
outside of the state that is within 100 miles of the courthouse.
SEE EXHIBIT 3.
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65. Process is not authorized outside of the territorial limitations
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imposed by law.
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66. Plaintiffs civil commitment order was issued in the Western District
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of Michigan arising from an action brought in diversity, thus prohibiting
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service in San Diego County, which is far outside the state of Michigan or
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FIRST CAUSE OF ACTION FTCA CLAIM AGAINST

THE UNITED STATES OF AMERICA FOR FALSE IMPRISONMENT
(NON JURY CLAIM)
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67. All previous paragraphs incorporated herein by reference as though
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fully set forth.
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68. On September 2013, at the time of Defendants service of Plaitiffs
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civil commitment order, and thereafter for a period of fifty one days,
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UNITED STATES confined Plaintiff without Plaintiffs consent and in spite
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of Plaintiffs objections.
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69. Plaintiff was detained and held against his will at GEO Corrections
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Western Region Detention Facility in San Diego, California.
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Complaint - 12
70. UNITED STATES was precluded by federal law (as described above)
and had no authority to serve, arrest and detain Plaintiff in San Diego
California pursuant to the civil commitment order issued in the Western
District of Michigan arising from a case brought in diversity.
71. Because of the Defendants willful, wanton, malicious and oppressive
conduct, Plaintiff seeks damages from UNITED STATES as set forth in the
administrative claim.
72. Under the FTCA the UNITED STATES is liable for the above-described
actions of the Individual Agents as they were acting within the scope of its
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employment.
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SECOND CAUSE OF ACTION FTCA CLAIM AGAINST

THE UNITED STATES OF AMERICA FOR NEGLIGENCE
(NON JURY CLAIM)
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fully set forth.
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74. Defendants owed Plaintiff a duty of care to ensure that they hired,
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trained, and supervised their employees and/or agents so as to prevent
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violations of Plaintiff's constitutional, statutory and common law rights.
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75. The UNITED STATES and U.S. Marshal Service have a non-
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discretionary duty to act in compliance with federal statute, regulation, or
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policy that specifically prescribes a course of action.
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76. UNITED STATES acting through the U.S. Marshal Service breached its
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duty of care by unlawfully serving a civil commitment order to Plaintiff
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outside of its territorial jurisdiction as specifically provided in FRCP
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4.1(b).
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77. Despite Defendants express knowledge of federal law which
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Complaint - 13
prohibited service of the civil commitment order to Plaintiff in Califcornia,
Defendants commenced a nationwide manhunt resulting in the unlawful
arrest of Plaintiff.
78. UNITED STATES knew or reasonably should have known, that their
outrageous and reckless conduct as demonstrated by their unlawful
service, assault, battery, false arrest, false imprisonment, and interference
with civil rights of Plaintiffs would embarrass, shock, intimidate,
incapacitate and cause mental anguish to Plaintiff.
79. As a direct and proximate result of these actions, UNITED STATES
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deprived Plaintiff of his liberty for fifty one days, negatively impacted his
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business interests, forced him to endure emotional and physical suffering,
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loss of enjoyment of life, and required expenditure of significant funds for
13
legal defense.
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80. Under the FTCA the defendant United States is liable for the above-
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described actions of the Individual Agents as they were acting within the
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scope of its employment.
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THIRD CAUSE OF ACTION FTCA CLAIM AGAINST

THE UNITED STATES OF AMERICA FOR ASSAULT
(NON JURY CLAIM)
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fully set forth.
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82. By the aforementioned actions, UNITED STATES inflicted assault
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upon Plaintiff. The acts and conduct of UNITED STATES was the direct and
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proximate cause of the injury and damage to Plaintiff and violated his
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statutory and common law rights as guaranteed by the laws and
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Constitution of the California.
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Complaint - 14
83. As a result of the foregoing, Plaintiff suffered specific bodily injury,
pain and suffering, great humiliation, mental anguish, costs, and expenses
and were otherwise damaged and injured.
84. The Plaintiff's rights have been violated because he was assaulted in
violation of those rights due to the acts of the Individual Agents.
scope of their employment.
FOURTH CAUSE OF ACTION FTCA CLAIM AGAINST

THE UNITED STATES OF AMERICA FOR BATTERY
(NON JURY CLAIM)
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fully set forth.
13
87. By the aforementioned actions, UNITED STATES inflicted battery
14
upon Plaintiff. The acts and conduct of UNITED STATES was the direct and
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proximate cause of the injury and damage to Plaintiff and violated his
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statutory and common law rights as guaranteed by the laws and
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Constitution of the California.
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88. As a result of the foregoing, Plaintiff suffered specific bodily injury,
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pain and suffering, great humiliation, mental anguish, costs, and expenses
20
and were otherwise damaged and injured.
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89. The Plaintiff's rights have been violated because he was assaulted in
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violation of those rights due to the acts of the Individual Agents.
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Complaint - 15
FIFTH CAUSE OF ACTION FTCA CLAIM AGAINST

THE UNITED STATES OF AMERICA FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(NON JURY CLAIM)
2
3
4
fully set forth.
92. UNITED STATES chose to disregard federal law and U.S. Marshal
Service Policy, threatened Plaintiff of its unlawful intent, and ultimately
unlawfully arrested Plaintiff.
93. Plaintiff was deprived of his liberty for fifty one days and suffered
10
immeasurably. During the course of his arrest, seizure, handcuffing,
11
fingerprinting, booking, numerous searches, and detention, Plaintiff
12
suffered continuous shock, trauma, humiliation, distress, discomfort, fear,
13
demoralization, mental anguish, and illness caused by the illegal and
14
unlawful arrest and confinement.
15
94. UNITED STATES knew or reasonably should have known, that its
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outrageous and reckless conduct as demonstrated by their unlawful
17
service, assault, battery, false arrest, false imprisonment, and interference
18
with civil rights of Plaintiffs would embarrass, shock, intimidate,
19
incapacitate and cause mental anguish to Plaintiff.
20
95. As a direct and proximate result of said conduct, Plaintiff suffered
21
severe emotional distress, pain and suffering, fear, anxiety,
22
embarrassment, discomfort and humiliation.
23
96. Plaintiff is informed and believes, and thereon alleges, that the
24
UNITED STATES and its agents committed the acts herein alleged
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maliciously, fraudulently and oppressively in conscious disregard for
26
Plaintiff's rights and that the conduct of UNITED STATES and its agents

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Complaint - 16
was a substantial factor in causing Plaintiffs emotional distress.
SIXTH CAUSE OF ACTION BIVENS CLAIM AGAINST

ALL INDIVIDUAL AGENTS AND DOES 1-10 FOR
FOURTH AMENDMENT VIOLATIONS
6
7
fully set forth.
99. The Individual Agents are federal law enforcement officers who acted
10
under the color of federal law.
11
100. The Western District of Michigan bench warrant and attached orders
12
clearly describe Plaintiffs offense as one of civil contempt arising from a
13
private action for breach of contract brought in diversity.
14
101. Federal law, including Fed Rule Civ. Pro. 4.1(b) as described above,
15
specifically prohibits service of Plaintiffs civil commitment order in San
16
Diego County, California.
17
102. On multiple occasions prior to Plaintiffs arrest, Defendants PEROSKY
18
and HETHERINGTON were individually and personally reminded that
19
federal law prohibited service of the civil commitment order outside of the
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state of Michigan and 100 miles from the Western District of Michigan
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Courthouse.
22
103. In deliberate indifference to federal law and plaintiffs Constitutional
23
rights, through their own actions, PEROSKY and HETHERINGTON led a
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nationwide manhunt to apprehend Plaintiff, with the specific intent to
25
illegally deprive him of his core liberty interest to be free from bodily
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Complaint - 17
restraint.
104. Defendants PEROSKY and HETHERINGTON enlisted Defendant
LANEY and DOES 1-10 to effectuate the service of civil commitment/bench
warrant in San Diego County, California.
105. Plaintiff had the right under the Fourth Amendment to be free from
unlawful seizure.
106. The Individual Agents through their own actions acted in knowing
violation or reckless disregard of Plaintiffs Constitutional protections by
directly participating, contributing, and resulting in Plaintiffs unlawful
10
service, arrest, seizure and fifty one day detention.
11
107. No reasonable official could have believed it lawful to make an arrest
12
in California for being in civil contempt where the known relevant facts
13
are that the civil contempt order was issued in the Western District of
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Michigan, and the case was brought in diversity.
15
108. By reason of the violation of Plaintiff's Constitutional rights by the
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Individual Agents, Plaintiff was caused to experience physical and
17
psychological pain and suffering, incur expenses, lose earnings, suffer
18
damage to his reputation, and in other respects suffered damages.
19
SEVENTH CAUSE OF ACTION BIVENS CLAIM AGAINST

ALL INDIVIDUAL AGENTS AND DOES 1-20 FOR
FIFTH AMENDMENT VIOLATIONS
20
21
22
fully set forth.
23
110. Plaintiff possessed the rights guaranteed by the Fifth Amendment to
24
not be deprived of life and liberty without due process of law, including
25
but not limited to the right not to suffer harm from persons acting under
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Complaint - 18
the color of law that is intentionally or wantonly inflicted or which is
accomplished with deliberate, reckless, or callous indifference to his
Constitutional rights.
111. The Individual Agents are federal law enforcement officers who acted
under the color of federal law.
112. Service of Plaintiffs civil commitment order and subsequent arrest
was prohibited outside the territorial jurisdiction of the Western District
of Michigan.
113. The Individual Agents had no authority to serve the civil commitment
10
order and arrest Plaintiff in San Diego County, California.
11
114. The Individual Agents acted in knowing violation or reckless
12
disregard of Plaintiffs Constitutional protections by directly participating,
13
contributing, and resulting in Plaintiffs unlawful seizure and fifty one day
14
detention.
15
115. Defendants HETHERINGTON, PEROSKY, LANEY, and DOES 1-10
16
individually, severally and/or in concert with each other, in violation of
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state and federal law, and in violation of Plaintiffs' freedoms, rights and
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immunities as secured and protected by the Constitution of the United
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States, through their own actions deprived Plaintiff of his right to not be
20
deprived of liberty without due process of law.
21
116. No reasonable official could have believed it lawful to make an arrest
22
in California for being in civil contempt where the only relevant facts are
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that the civil contempt order was issued in the Western District of
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Michigan, and the case was brought in diversity.
25
DEMAND FOR A JURY TRIAL ON BIVENS CLAIMS
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Complaint - 19
Plaintiff demands a jury trial to resolve all claims brought herein except
2 for the claim against UNITED STATES under the FTCA, which must be
3 adjudicated by the Court.
4
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays judgment against all Defendants as
6 follows:
7
1. The sum of $2.1 million in lost business profits, loss of business
8
contracts, loss of income, and loss of earning capacity;
2.
10
from search, seizure, arrest, booking, detention, the pain and suffering and
11
physical consequences of imprisonment, as well as mental and emotional
12
suffering, humiliation, injury to personal and professional reputation;
13
including but not limited to loss of companionship of family, friends, and
14
loss of business reputation.
15
3.
Costs.
16
4.
Interest on such amount as allowed by law from the date of judgment
17
until paid;
18
5.
19
HETHERINGTON.
20
6.
21
The sum of $4.2 million in general and compensatory damages arising
For punitive damages against Defendants PEROSKY, LANEY, and

Such other and further relief as the court deems just and proper.

22
23 Dated:

24
June 1, 2015

/s/ Robert W. Wright

Robert W. Wright, Attorney
for Plaintiff Merle Ferguson
25
26

27

Complaint - 20
EXHIBITS

EXHIBIT 1 - Federal Tort Claim
EXHIBIT 2 - Order of Civil Commitment/Bench Warrant

Western District of Michigan
Dkt #313, Korrey v. Ferguson, Case # 1:10-cv-00755

EXHIBIT 3 U.S. Marshal Service Policy Directive 11.3

EXHIBIT 4 - Magistrate Judge Information Sheet
10
11
22
Dkt #1-1, USA v. Ferguson, Case # 3:13-mj-03470

Southern District of California

EXHIBIT 5 - Petition For Writ Of Habeas Corpus
Dkt #1, Ferguson v. Noonan et al, Case # 3:13-cv-02580


EXHIBIT 6 - Release Order
Dkt #13, USA v. Ferguson, Case # 3:13-mj-03470

Complaint
EXHIBIT 1
P. 1
EXHIBIT 2
P. 2

Case 1:10-cv-00755-RJJ Doc #208 Filed 08/30/12 Page 1 of 6 Page ID#1756

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL KORREY,
Plaintiff,
CASE NO. 1:10-cv-755
v.
HON. ROBERT J. JONKER
MERLE FERGUSON, et al.,
Defendants.
__________________________________/
SANCTIONS ORDER ENFORCING PRIOR COURT ORDERS
On May 29, 2012, the Court entered an Order (docket # 160) granting-in-part and denying-inpart Plaintiffs Motion to enforce its Judgment against Defendants (docket # 143). The Order
required Defendants to, among other things, submit to debtors examinations no later June 29, 2012,
and to provide current financial statements to Plaintiff no later than June 12, 2012, that were signed
under penalty of perjury and fully disclosed each Defendants respective financial position. (docket
# 160.) The Court also required the parties to file a brief with the Court explaining whether a
receiver should be appointed in this case, particularly given the new action filed by the Judgment
Debtors in the United States District Court for the Southern District of California (No. 3:12-cv1037), seeking to rescind the settlement agreement that led to entry of Judgment in this action. (Id.)
On June 25, 2012, Plaintiffs filed a Motion for Sanctions and to Hold Defendants in Contempt of
Court, alleging continued failure to comply with the debtor examination subpoenas, as well as the
Courts requirement that Defendants provide up-to-date financial statements to Plaintiff. (docket
# 184.) This Motion was filed on the heels of another sanction motion Plaintiff filed on May 24,
2012, based on similar non-compliance with the Courts Orders. (docket # 157.) On July 12, 2012,
EXHIBIT 2
P. 3

Plaintiffs filed a Preliminary Injunction Motion, again noting Defendants continued noncompliance and further requesting the Court to freeze $2.5 million in assets that a Worldwide
shareholder (not a party to this case) allegedly placed in an attorney trust account as collateral to
cover the judgment. (docket # 198.) Defendants were given the opportunity to respond to these
Motions, but failed to do so, other than to indicate that they did not oppose the appointment of a
receiver. (docket # 169.) After reviewing all relevant matters of record, the Court GRANTS
Plaintiffs Motions for Sanctions (docket ## 157, 184) as set forth below, DENIES these Motions
in all other respects, and also DENIES Plaintiffs Preliminary Injunction Motion.
After reviewing the record, it is clear that Defendants have failed to comply with, and in
some cases affirmatively refused to follow, the Courts previous Orders in several respects. First,
Defendants failed to provide updated copies of complete financial statements signed under penalty
of perjury.
Instead, Defendant Worldwide Food Services, Inc. (Worldwide) provided an
incomplete, outdated excel spreadsheet summarizing some aspects of its financial condition, but it
was not current as the Court required. Key documents referred to in the spreadsheet were also
notably absent, as was a corporate officers signature under penalty of perjury. Moreover,
Worldwide has also failed to supplement these statements on a monthly basis as the Court required.
As for the individual Defendants, neither of them even attempted to provide a financial statement
that would satisfy the Courts requirements. Plaintiffs counsel provided Defendants an opportunity
to remedy these deficiencies, but they refused. (docket ## 184-2 through 184-4.) Second,
Worldwide provided the incorrect judgment amount in its amended disclosure statement to Pink
Sheets, LLC and its investors, misstating the amount by over $20,000. (docket # 185-4, at 22.)
Standing alone, the Court might be willing to attribute this to a typographical error, but when viewed
2
EXHIBIT 2
P. 4

against Defendants pattern of conduct traceable to the beginning of the case, it further evidences
disregard of the Courts Order.
Defendants flat refusal to submit to debtors examinations represents a flagrant disregard
of the Courts Order, as the Court specifically required Defendants to submit to debtors
examinations on or before June 29, 2012. Plaintiff provided notice of these debtors examinations
for June 25, 2012, but on the day before, defense counsel informed Plaintiff that no one would
appear, despite being advised of the Courts Order that . . . mandate[d] them appearing for the
Debtors Exam . . . and the potential ramifications of their failure to appear. (docket # 184-4, at 2.)
Based on the record before it, the Court finds Defendants have no possible explanation for their
refusal other than willful disregard amounting to contempt of Court.
The Courts authority to hold a party in civil contempt has two primary purposes: to compel
obedience and to compensate injuries. See Glover v. Johnson, 199 F.3d 310, 313 (6th Cir. 1999).
There is no dispute that Defendants had notice of the Courts Order, and consciously chose to
disregard it. See NLRB v. Cinn. Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987) (holding litigant may
be held in contempt when adverse party shows by clear and convincing evidence that litigant violated
a definite and specific order of the court requiring him to perform or refrain from performing a
particular act or acts with knowledge of the courts order (quoting SEC v. First Fin. Group of Tex.,
Inc., 659 F.2d 660, 669 (5th Cir. 1981)). Defendants were given ample time to respond to Plaintiffs
Motions after receiving notice of them, but failed to do so. Banner v. City of Flint, 99 Fed. Appx
29 (6th Cir. 2004) (citing Wilson-Simmons v. Lake County Sheriffs Dept, 207 F.3d 818 (6th Cir.
2000) (A court must give notice and afford an attorney opportunity to be heard before imposing
EXHIBIT 2
P. 5

sanctions . . . but not formal notice detailing the penalties or a full evidentiary hearing.) Therefore,
sanctions are appropriate.
Regarding appropriate sanctions at this time, the Court concludes that a fine of $1,000 per
day, per Defendant, is appropriate, until Defendants comply with all aspects of the Courts previous
Order (docket # 160). This includes, without limitation, providing complete financial statements
signed under penalty of perjury, and each Defendant submitting to a debtors examination.
Defendants shall also provide an explanation, supported by a sworn affidavit, regarding the $2.5
million allegedly placed in the attorney trust account. Defendants are required to comply within 30
days of this Order, and file a Notice of Compliance with the Court. See United States v. State of
Tenn., 925 F. Supp. 1292 (1995) (outlining the standard for judging compliance in this Circuit). If
Defendants fail to comply within this period, Plaintiff is invited to file another motion for sanctions
based on this noncompliance. Defendants continued failure to comply will result in the Court
imposing additional sanctions, which may include a warrant being issued for the arrest of Defendants
Ferguson and Donohue and a period of incarceration until Defendants have complied with the
Courts Orders. See In re Burkman Supply, Inc., 217 B.R. 223, 226 (W.D. Mich. 1998) (emphasis
added).
As for Plaintiffs request for a court-appointed receiver, the Court requires additional
information from Plaintiff before proceeding with this course of action under FED. R. CIV. P. 66. At
the outset, the Court notes Defendants no longer oppose a receiver being appointed for Worldwide
(docket # 169). The Court also notes that the facts now of record would appear to support
appointment of receiver. However, before the Court can decide on the propriety of this remedy,
Plaintiff must identify an individual that is willing to serve as a receiver in this case and provide the
4
EXHIBIT 2
P. 6

Court with the curriculum vitae for any such individual. Plaintiff must also explain how the
individual will be compensated for his or her services. The cost of a court-appointed receiver is no
doubt ultimately recoverable against Defendants, but as a practical matter, someone has to arrange
payment for a receiver along the way to induce someone to accept the job. Additionally, Plaintiff
must provide the Court with a written summary explaining how it believes a receivership would
assist in this case. On the current record, the Court is unclear as to how a receivership would
function, given the rather fluid nature of Worldwides business, and the complete lack of cooperation
on the part of Defendants in providing even the most basic financial and business operations
information.
ACCORDINGLY, IT IS ORDERED THAT Plaintiffs Motions for Sanctions and to Hold
Defendants in Contempt of Court (docket # 157, 184) is GRANTED to the extent above, and
DENIED in all other respects. Each Defendants daily fine of $1,000 for noncompliance is payable
to the Clerk of the Court, beginning August 31, 2012, and continuing day-to-day thereafter until the
Court certifies a Notice of Compliance. If this coercive sanction fails to secure compliance, the
Court will consider a warrant for arrest and imprisonment as an additional coercive sanction to
achieve compliance with the Courts Orders.
IT IS FURTHER ORDERED THAT Plaintiffs Motion for a Preliminary Injunction
(docket # 198) is DENIED. As the Court noted in a previous Order (docket # 160), this matter has
proceeded past judgment, and a preliminary injunction is therefore no longer the appropriate vehicle
for the relief Plaintiff seeks. Rather, the case has proceeded to collection, with the usual enforcement
mechanisms and limitations applicable at this stage. The Courts denial is without prejudice to
EXHIBIT 2
P. 7

Plaintiff requesting assets being frozen and additional enforcement measures taken after the 30-day
compliance period has expired.
IT IS SO ORDERED.
Dated:
August 30, 2012
/s/ Robert J. Jonker

ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
EXHIBIT 2
P. 8

M.
N.
Summoning Jurors:
1.
Juror Summons: A juror summons is a process issued by the court commanding the
appearance of an individual to attend and be available for duty on a petit or grand jury at
a specified location, time and date. 28 U.S.C. 1866(b).
2.
Territorial Limits: The summons may be served any place within the district of the
court summoning the jury.
3.
Procedures:
a.
Issued By: The summons is issued by the clerk or jury commission of the U.S.
District Court.
b.
Served By: If service is accomplished by mail, the summons may be served by

the U.S. Marshal, clerk or jury commission. If personal service is required, the
summons is served by the U.S. Marshal.
c.
Manner of Service: The clerk or jury commission will first attempt mail service
via registered, certified or first-class mail addressed to the named individual at
his or her usual residence or business address. If mail service is not effective,
the clerk or jury commission will deliver the summons to the U.S. Marshal for
personal service upon the named individual.
d.
Return: Where service is accomplished by mail, the individual who effects

service shall make affidavit of service and shall attach thereto any receipt from
the addressee for a registered or certified summons. Where the U.S. Marshal is
required to effect personal service, no affidavit is required and return may be
recorded on a form USM-285, Process Receipt and Return.
Writ of Body Attachment:

1.
Writ of Body Attachment: A writ of body attachment is a process the court issues
directing the U.S. Marshal to bring a person who has been found in civil contempt before
the court. The process may also be called an order of commitment for civil contempt or a
warrant for civil arrest.
2.
Territorial Limits: An order of civil commitment of a person held to be in contempt of a

decree or injunction issued to enforce the laws of the United States may be served and
enforced anywhere in the United States. An order of civil commitment of a person held to
be in contempt of a decree or injunction not involving the enforcement of federal law may
only be served at any place within the state in which the district court is located or at any
place outside of the state that is within 100 miles of the courthouse.
3.
Procedures:
a.
Issued By: The writ is issued as an order of a U.S. District Court judge, U.S.
magistrate judge or U.S. bankruptcy judge under the seal of the clerk of the
court.
b.
Served By: The writ is served by the U.S. Marshal or a Deputy U.S. Marshal.
c.
Manner of Service: Service is accomplished by taking the named individual

(the contemnor) into custody and bringing the individual before the court without
undue delay. Because the writ is civil in nature, the U.S. Marshal generally
USMS Policy Directive 11.3, Civil Process.
EXHIBIT 3
Page 15 of 16
P. 9
EXHIBIT 4
P. 10

Case 3:13-cv-02580-LAB-KSC Document 1 Filed 10/24/13 Page 1 of 19

1 ROBERT W. WRIGHT
ATTORNEY AT LAW
2
CALIFORNIA BAR # 276653
3 716 CASTRO STREET
SOLANA BEACH, CA 92075
4
(858) 353-6591
5 bob.wright@mac.com

6

7 Attorneys for Petitioner
MERLE FERGUSON
8
9
10
11
12



)
13
MERLE FERGUSON,
)
14

)
)
15 Plaintiff-Petitioner,

)
16
-v-
)
)
17
ERIC NOONAN,
)
18
Warden of GEO Western Regional Detention )
)
19 Facility,
STEVEN STAFFORD,
)
20
U.S. Marshal, Southern District of California, )
)
21
Defendants-Respondents
)

22
)
23

////
24
////
25
////
26
////
27
////
28

Case No: '13CV2580 LAB KSC

PETITION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C.A. 2241.

Petition for Writ of Habeas Corpus
EXHIBIT 5
P. 11


Petitioner, by and through undersigned counsel, respectfully petitions this
2 Honorable Court for a writ of habeas corpus to remedy his unlawful detention by
3 Respondents.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
INTRODUCTION
1.
This petition purely presents an issue of law, challenging the legality of the service
of an out of district warrant void for lack of jurisdiction and subsequent arrest and
confinement of the petitioner in custody and the procedures that produced it.
2.
Petitioner is incarcerated within the territorial jurisdiction of this court, his place of
incarceration being GEO Western Region Detention Facility in the city of San Diego, San
Diego County, California. Petitioner is under the direct control of Respondent and their
agents.
3.
Petitioner contends that the Western District of Michigan court did not have
jurisdiction to issue the out of district arrest warrant, the U.S. Marshal had no authority to
take petitioner into custody outside of the jurisdiction of the Western District of Michigan,
and this court has nor had jurisdiction over petitioner to order confinement or potential
future removal to the Western District of Michigan.
4.
Petitioner contends he is being held in violation of the Constitution and requests
immediate release.
20
JURISDICTION AND VENUE
Jurisdiction is invoked under Title 28, Section 2241 of the United States Code.
21 5.
22 Petitioner was arrested by the U.S. Marshal in San Diego, California. Petitioner is being
23 detained at the GEO Western Region Detention Facility in the city of San Diego, San Diego
24 County, California; and Petitioner is a resident of San Diego County.
25 6.
26 7.
No prior federal habeas corpus petitions have been filed.

Petitioner has exhausted any and all administrative remedies to the extent required
27 by law.
Venue is proper in this Court under 28 U.S.C. 1391(b), (e) since a substantial part
28 8.
EXHIBIT 5
P. 12


1 of the events, acts, and omissions giving rise to the claim occurred in this District.
2
3
4
5
6
7
8
9
10
11
PARTIES
9.
Petitioner, Merle Ferguson is a resident of San Diego, California, and is a lawful
resident of the United States.

10.
Respondent Eric Noonan is the Warden of the GEO Western Region Detention
Facility where Petitioner is currently detained. Therefore, Respondent has legal custody of
Petitioner. Respondent is sued in his official capacity.
11.
Respondent Steven C. Stafford is the U.S. Marshal for the Southern District of
California. Therefore, Mr. Stafford has legal custody of Petitioner. Mr. Morton is sued in his
official capacity.
12
FACTS AND PROCEDURAL HISTORY
Petitioner was a party in a civil breach of contract diversity suit (Korrey v. Ferguson
13 12.
14 et al, Case No. 1:10-CV-755) brought before Hon. Robert J. Jonker in the U.S District Court
15 Western District of Michigan.
During the proceedings, Hon. Judge Jonker found Petitioner in civil contempt of
16 13.
17 court for failure to produce certain financial records and submit to a debtors exam. See
18 Exhibit A.
On December 28, 2012 a bench warrant was issued in the Western District of
19 14.
20 Michigan for the arrest of Petitioner. See Exhibit B.
On September 12, 2013, the U.S. Marshals Service took Petitioner into custody in
21 15.
22 San Diego, California. See Exhibit C.
On September 17, 2013 a detention hearing was held in the Southern District of
23 16.
24 California where this court ordered petitioner to be held in custody without bail pending a
25 Removal/ID hearing. (Case No. 3:13-mj-03470-DHB). The courts findings stated that
26 petitioner was found guilty of civil contempt. Bail was denied. See Exhibit D.
27 17.
The Removal/ID Hearing is scheduled for October 29, 2013.
28
EXHIBIT 5
P. 13

CLAIMS FOR RELIEF
UNLAWFUL ARREST
3 18.
Petitioner re-alleges and incorporates by reference paragraphs 1 through 17 above
4 as if set forth here in full.

5 19.
The Fourth Amendment to the United States Constitution specifically requires a
6 judicially sanctioned search and arrest warrant be legally issued, in the appropriate
7 jurisdiction for any search and seizure in the United States.
8 20.
Petitioner is imprisoned, detained, confined, and restrained of liberty by virtue of a
9 bench warrant issued by Honorable Judge Jonker in the U.S. District Court Western District
10 of Michigan. The warrant was issued by order of the court for civil contempt.
11 21.
The arrest by the U.S. Marshal was executed in California which is outside the
12 territorial jurisdiction of the Western District of Michigan where the arrest warrant issued.
13 22.
Pursuant to Fed Rule Civ. Pro. 4.1(b), an order committing a person for civil
14 contempt in a diversity case may only be served in the state where the issuing court is
15 located or elsewhere in the United States within 100 miles from where the order was
16 issued. See SD Protection, Inc. v. Del Rio, 587 (E.D.N.Y. 2008); Spectacular Venture, L.P. v.
17 World Star International, Inc., 927 F.Supp. 683 (1996). Since the warrant for civil
18 contempt was executed in the Western District of Michigan, it could only be served within
19 the district or 100 miles thereof, and therefore any attempted service beyond this territory,
20 including the service to Petitioner in San Diego, California, on September 12, 2013 is invalid
21 and of no effect.
22
23
24
25
26
27
28
UNLAWFUL DEPRIVATION OF LIBERTY

23.
Petitioner re-alleges and incorporates by reference paragraphs 1 through 22 above
as if set forth here in full.

24.
Petitioners continued detention violates his right to substantive due process by
depriving him of his core liberty interest to be free from bodily restraint. The Due Process
Clause requires that the deprivation of Petitioners liberty be narrowly tailored to serve a
compelling government interest. While the Respondents would have a compelling
EXHIBIT 5
P. 14


1 government interest in detaining Petitioner in order to effect his removal, that interest
2 does not exist since the warrant is invalid for lack of jurisdiction, the U.S. Marshal had no
3 authority to arrest Petitioner in California, and the Court does not have jurisdiction to
4 continue confinement or order removal of the Petitioner.
5
6
7
8
9
10
EMERGENCY RELIEF REQUESTED

25.
Petitioner prays that this Court issue an Emergency Stay that enjoins Respondents
from proceeding with the Removal/ID hearing now scheduled to commence on October 29,
2013, and to continue the Stay in effect until this 2241 habeas corpus petition proceeding
is concluded.
RELIEF REQUESTED
11
Wherefore, petitioner requests that this court:
12

1. Assume jurisdiction over this matter;
13
14
2. Order Respondents from removing Petitioner to the Western District of Michigan,
15
until the disposition of this case;
16
3. Grant Petitioner a writ of Habeas Corpus directing the Respondents to
17
immediately release Petitioner from custody;
18
4. Expunge all references to the disciplinary charge from petitioner's central file;
19
20
21
22
23
24
25
5. Grant any other and further relief that this court deems just and proper.

I affirm, under penalty of perjury, that the foregoing is true and correct.

Dated:
26

27

28

October 24, 2013

/s/ Robert W. Wright

Robert W. Wright, Attorney
for Plaintiff/Petitioner Merle Ferguson
EXHIBIT 5
P. 15

EXHIBIT C
EXHIBIT 5
P. 16

EXHIBIT 5
P. 17

Case
Case
3:13-cv-02580-LAB-KSC
3:13-mj-03470-DHB Document
Document
101 Filed
Filed 09/30/13
10/24/13 Page
Page 115
ofof
4 19
2
3
EXHIBIT D
8~2.S
'3
,~p 'lO
1
~~\
~t~~:
r~A~j
')[Pll1 v
6
7
10
UNITED STATES OF AMERICA,

11
)Case No.13MJ3470-WVG
)
)
)
Plaintiff,
12
v.
)FINDINGS OF FACT AND

)ORDER OF DETENTION
13
14
MERLE FERGUSON,
Defendant.
15
16
17 II
In accordance with
3143 of the Bail Reform Act of
18 II
1984 (18 U.S.C.
19 II
held on September 17, 2013, to determine whether defendant
3141 et seq.), a detention hearing was
20 II MERLE FERGUSON (the "De fendant") should be held in custody

21 II
pending trial on the grounds that he is a flight risk.
22 II Assistant U. S.
Attorney
Michael G.
Wheat appeared on
23 II
behalf of the United States; Attorney Ward Stafford Clay,
24 II
appeared on behalf of the Defendant.
25 II
Based on the evidence proffered by the United States
26 II
and the Defendant, the pretrial services report, and the
27 II
December
28 II
Jonker, District Judge, Western District of Michigan, the
EXHIBIT 5
28,
2012,
Order
P. 18
of
the
Honorable
Robert
J.

Case
Case
3:13-cv-02580-LAB-KSC
Document
101 Filed
Filed 09/30/13
10/24/13 Page
Page 216
ofof
4 19
1 II
Court concludes that defendant did not present clear and
2 II
convincing evidence that
3 II
would reasonably assure his appearance.
conditions
4 II
could be
set
that
I.
FINDINGS OF FACT
Nature and Circumstances of the Offense Charged
(18 U.S.C. 3143)
A.
6
7 II
The Defendant was found guilty of civil contempt as
8 II
detailed in Western District of Michigan case No. 10-CV
9 II
755, Docket Item 311.

B.
10
11
II
Weight of the Evidence Against the Defendant
The weight of the evidence against the Defendant is
12 II
strong
in
that
13 II
district court.
the
Defendant was
found
guilty by the
14
C.
History and Characteristics of the Defendant
15
1.
The
Defendant
is
66
year-old
United
States
16 II
citizen, and is presently living in a house in Encinitas,
17
California, with roommates.
18 II
employment in the United States.

2.
19 II
Al though
the
Defendant
21
II
California
22
II
obtained a California driver's license since 1999.
23
II
get
24 II
25 II
26
II
28
II
driver's
2009
3.
lived
in
not
sought
or
2011,
He did
claiming
States.
The Defendant owns no real property in the United

The Defendant has no known employment in the
States.
Defendant's
son,
Chad
Ferguson,
professional poker player from Las Vegas, Nevada, was in

2
EXHIBIT 5
in
the
has
and has
license
to
residence in Nevada.
United
27
Nevada
least
he
ties
Southern
at
California,
some
II
since
of
has
20
District
The Defendant has no known
P. 19
13MJ3470-WVG

Case
Case
3:13-cv-02580-LAB-KSC
Document
101 Filed
Filed 09/30/13
10/24/13 Page
Page 317
ofof
4 19
1 II
court to support Defendant, but told PTS that he did not
2 II
know what his father did for a living.

4.
4 II
Defendant did serve in the armed services of the
United States.
D.
Nature and Seriousness of Danger Posed by Release

(18 U.S.C. 3142(g) (4))
There
Defendant
community.
is
nothing
would
pose
to
a
suggest
danger
that
to
any
10
II.
11
REASONS FOR DETENTION
12
A.
13 II the
release
of
the
person
or
the
There is more than probable cause to believe that
Defendant
was
found
guilty
of
civil
contempt
as
14 II
detailed in Western District of Michigan case No. 10-CV
15 II
755,
B.
16
17 II
Docket Item 311.

The Defendant has limited ties to this community.
He therefore has a strong motive to flee.
18 II
C.
Defendant failed to show by clear and convincing
19 II
evidence that conditions could be set.
20 II
/ /
21 II
//
22
II / /
23
24
25
26
27
28
3
EXHIBIT 5
P. 20
13MJ3470-WVG

Case
Case
3:13-cv-02580-LAB-KSC
Document
101 Filed
Filed 09/30/13
10/24/13 Page
Page 418
ofof
4 19
III.
ORDER
3 II
IT IS HEREBY ORDERED that the Defendant be detained
4 II pending trial in this matter.

5 II
IT IS FURTHER ORDERED that the Defendant be committed
6 II
to the custody of the Attorney General or his designated
7 II
representative for confinement in a corrections facility
8 II
separate, to the extent practicable, from persons awaiting
9 II
or serving sentences or being held in custody pending

appeal.
10
11
II
12 II
The
Defendant
shall
be
afforded
reasonable
opportunity for private consultation with counsel.

While
in
custody,
upon
order
of
court
of
the
13 II United States or upon the request of an attorney for the

14 II united States, the person in charge of the correctional
15 II
facility shall deliver the Defendant to the United States
16 II Marshal for the purpose of an appearance in connection

17 II
with a court proceeding or any other appearance stipulated
18 II
to by defense and government counsel.
19 II
THIS ORDER IS ENTERED WITHOUT PREJUDICE.
20
IT IS SO ORDERED.
21
DATED: septernbe~~, 2013.
~ ~
22
23
WILLIAM V. GALLO
United States Magistrate Judge
24
Prepared by:
25
26
27
II
MICHAEL G. WHEAT
Assistant U.S. Attorney
28
4
EXHIBIT 5
P. 21
13MJ3470-WVG

Case 3:13-mj-03470-DHB Document 13 Filed 11/01/13 Page 1 of 1
EXHIBIT 6
P. 22

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Ferguson v. United States of America Et Al Doc 1 Filed 04 Jun 15 PDF

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Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 1 of 43

Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 2 of 43

Plaintiff MERLE RALPH FERGUSON, an individual, alleges upon

Plaintiff in San Diego, California and therefore depriving him of his

Constitutional rights, arising from the service of an unlawful civil

commitment order issued in the Western District of Michigan pursuant to

a civil case brought in diversity.

disapproval by family, friends, neighbors, and business affiliates who

aforementioned damages including forever disrupting and harming

personal and professional relationships.

United States Marshal Service caused actions including false

imprisonment, negligence, assault, battery, and intentional interference of

their individual capacity, caused the denial and deprivation of Plaintiffs

Plaintiff contends that Defendants unlawfully arrested and detained

Plaintiff was subject to embarrassment, ridicule, scorn, and

Plaintiff alleges that Defendant UNITED STATES, on behalf of the

Plaintiff alleges that individual Defendants, and DOES 1-20, sued in

California, located within the Southern District of California.

Plaintiff, Merle Ralph Ferguson, is now, and at all times mentioned in

Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 3 of 43

control over United States Marshal Service (US Marshals).

herein, Defendant UNITED STATES hired, supervised, trained, and

managed licensed law enforcement officers through the United States

times material to this complaint to the best of Plaintiffs' information and

belief, a Deputy US Marshal employed by United States Marshal Service

He is sued individually in his capacity as a federal officer within the

meaning and scope of Bivens.

this complaint to the best of Plaintiffs' information and belief, a Deputy US

pertinent herein he acted under color of that capacity. He is sued

individually in his capacity as a federal officer within the meaning and

complaint to the best of Plaintiffs' information and belief, a Deputy US

pertinent herein he acted under color of that capacity. He is sued

individually in his capacity as a federal officer within the meaning and

The UNITED STATES is a governmental entity with jurisdiction and

Steve HETHERINGTON (hereinafter "HETHERINGTON"), was at all

Tom PEROSKY (hereinafter "PEROSKY"), was at all times material to

Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 4 of 43

these Defendants by their fictitious names. Plaintiff will amend this

Defendants is responsible in some manner for the occurrences alleged

HETHERINGTON, PEROSKY, LANEY, and DOES 1-20 are also hereinafter

referred to as Individual Agents or Individuals.

JURISDICTION AND VENUE

12. Tort claims against Defendant UNITED STATES brought pursuant to

1346(b), 2671 et seq., and the constitutional, statutory, and common

laws of the California.

13. Constitutional claims against Individual Agents arise under Bivens v.

(1971), and jurisdiction is conferred on this Court by 28 U.S.C. 1331.

causes of action pursuant to 28 U.S.C.A. 1367.

Southern District of California. Thus, venue is properly laid in this court.

Case 3:15-cv-01253-JM-DHB Document 1 Filed 06/04/15 Page 5 of 43

million in personal injury damages arising out of the above-described

circumstances. A true and correct copy of the claim is attached to this

complaint, marked Exhibit 1, and incorporated by reference. The claim

18. This suit is filed against UNITED STATES, PEROSKY, HETHERINGTON,

time period provided by federal law.

19. Plaintiff is a well-respected businessman, decorated war veteran with

two tours in Vietnam, family man and upstanding member of his

community. He had no prior criminal record. Plaintiff is an officer and

director of several U.S. corporations, all in good standing.

20. Plaintiff was a party in a civil breach of contract suit brought in

diversity in the U.S. District Court Western District of Michigan. [Korrey v.

Ferguson et al, Case No. 1:10-CV-755)].