Case 1:16-cv-00456-JTN-ESC ECF No. 1 filed 05/03/16 PageID.

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
N.K, a Minor, by and through his
Next Friend, PATRICIA NELSON
Plaintiff,
CASE NO:
HON:

v
CITY OF BATTLE CREEK, and
ESTEBAN RIVERA, in his individual
and official capacity,
Defendants.
CHRISTOPHER TRAINOR & ASSOCIATES
CHRISTOPHER J. TRAINOR (P42449)
AMY J. DEROUIN (P70514)
Attorneys for Plaintiff
9750 Highland Road
White Lake, MI 48386
(248) 886-8650
(248) 698-3321-fax
Amy.derouin@cjtrainor.com

THERE IS NO OTHER PENDING OR RESOLVED CIVIL

ACTION ARISING OUT OF THE TRANSACTION OR
OCCURRENCE ALLEGED IN THE COMPLAINT

COMPLAINT AND JURY DEMAND

NOW COMES Plaintiff, N.K., a Minor, by and through his Next Friend, PATRICIA
NELSON, by and through his attorneys, CHRISTOPHER TRAINOR & ASSOCIATES, and for
his Complaint against the above-named Defendants states as follows:
PARTIES
1.

N.K., a minor, is a resident of the City of Battle Creek, County of Calhoun, State of
Michigan and was at all relevant times mentioned herein.

2.

Patricia Nelson is a resident of the City of Battle Creek, County of Calhoun, State of
Michigan and was at all relevant times mentioned herein.
1

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3.

Defendant CITY OF BATTLE CREEK is a municipal corporation and governmental

subdivision organized and existing under the laws of the State of Michigan.

4.

Defendant ESTEBAN RIVERA is and/or was a police officer for the City of Battle Creek
Police Department and at all times mentioned herein was acting under color of law, in his
individual and official capacity, and within the course and scope of his employment.

JURISDICTION
5.

All relevant events giving rise to this lawsuit occurred in the County of Calhoun, City of
Battle Creek, State of Michigan.

6.

Jurisdiction is vested in this Court pursuant to 28 U.S.C. 1331 [federal question], 28

U.S.C. 1343 [civil rights] and 28 U.S.C 1367 [supplemental state claims].

7.

That this lawsuit arises out of Defendants violation of N.K.s federal constitutional rights
as secured by the Fourth Amendment as it applies to the states through the Fourteenth
Amendment of the United States Constitution and consequently, N.K. has a viable claim
for damages under 42 U.S.C. 1983.

8.

That the amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000.00) not
including interest, costs, and attorney fees.
FACTS

9.

Plaintiff realleges and incorporates by reference each and every paragraph of this
Complaint as though fully set forth herein.

10.

On November 16, 2013, Defendant RIVERA responded to a 911 call about a young boy
walking down the street with what appeared to be a BB gun.

11.

Defendant RIVERA arrived on the scene in front of a convenience store where he

observed a young boy, N.K., with three of his friends.

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12.

Defendant RIVERA observed that N.K. fit the description and he was holding an Airsoft
BB gun.

13.

Defendants RIVERA ordered N.K. to drop the Airsoft BB gun and put his hands up.

14.

N.K. obeyed Defendant RIVERAs orders and dropped the Airsoft BB gun, kicked it to
Defendant RIVERA and put his hands up in the air.

15.

It was at this time, for no reason at all, that Defendant RIVERA fired his automatic
weapon and struck young N.K. directly in the right shoulder.

16.

N.K. immediately fell to the ground and then, out of complete shock and fear for his own
life, brought himself to his feet and ran as fast as he could to avoid being shot again.

17.

N.K. could not run far due to his injury, and he collapsed in a nearby field.

18.

Emergency medical aid appeared on the scene and rushed N.K. to the hospital for
emergency surgery.

19.

Upon information and belief, Defendant RIVERA, without provocation or justification,

shot N.K.

20.

At no time during the shooting did Defendants have justifiable reason to use the deadly
force that they employed.

21.

None of the Defendants in this case are entitled to qualified immunity.

COUNT I
VIOLATION OF THE FOURTH AMENDMENT
42 U.S.C. 1983 EXCESSIVE FORCE

22.

Plaintiff realleges and incorporates by reference each and every paragraph of this
Complaint as though fully set forth herein.

23.

That the individual Defendant was at all times acting under color of law, within the
course and scope of his employment, and in his individual and official capacities.

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24.

That Defendant Rivera violated N.K.s clearly established and federally protected rights
as set forth under the United States Constitution and the Amendments thereto, including,
but not limited to, the Fourth Amendment of the United States Constitution to be free
from unreasonable searches and seizures mainly to be free from excessive use of force,
when he employed unnecessary and unreasonable excessive and deadly force which
resulted in N.K.s severe injuries.

25.

Defendants acts were at all times objectively unreasonable in violation of N.K.s clearly
established rights under the Fourth Amendment to the United States Constitution which
proximately resulted in N.K.s severe injuries.

26.

As a proximate result of Defendants violation and/or deprivation of N.K.s constitutional

rights, N.K. has a viable claim for compensatory and punitive damages pursuant to 42
U.S.C. 1983 together with costs, interest, and attorney fees pursuant to 42 U.S.C.
1988.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award

in his favor and against Defendants in an amount in excess of Seventy-Five Thousand Dollars
($75,000.00) exclusive of interest, costs, and attorney fees as well as an award of punitive
damages.
COUNT II
CITY OF BATTLE CREEKS CONSTITUTIONAL VIOLATIONS
27.

Plaintiff realleges and incorporates by reference each and every paragraph of this
Complaint as though fully set forth herein.

28.

That the Fourth Amendment prohibition against unreasonable searches and seizures
forbids police officers from imposing excessive physical force against citizens.

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29.

Defendant CITY OF BATTLE CREEK permitted customs, practices, and/or policies

which resulted in the violations of N.K.s constitutional rights complained of herein.

30.

These customs, practices, and/or policies included, but were not limited to, the following:
a. Failing to adequately train and/or supervise its police officers so as to
prevent violations of citizens constitutional rights;
b. Failing to adequately train and/or supervise police officers regarding the
proper use of force;
c. Failing to adequately train and/or supervise officers regarding legal
searches;
d. Failing to adequately supervise, review, and/or discipline police officers
whom Defendant CITY OF BATTLE CREEK knew or should have known
were violating or were prone to violate citizens constitutional rights, thereby
permitting and/or encouraging its police officers to engage in illegal conduct;
e. Failing to adequately train and/or supervise its police officers in the proper
policies and procedures for establishing probable cause to arrest and the
proper policies and procedures for effectuating an arrest without the use of
excessive and/or deadly force;
f. Failing to ensure that its police officers did not violate citizens
constitutional rights under the Fourth Amendment; and
g. Generally permitting unlawful and/or unconstitutional customs, policies,
and/or practices to exist.

31.

Defendants conduct demonstrated a substantial lack of concern for whether an injury

resulted.

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32.

Defendants acts and/or indifference and/or omissions were the direct and proximate
cause of N.K.s severe injuries.

33.

The facts as set forth in the preceding paragraphs constitute a violation of N.K.s Fourth
Amendment rights and pursuant to 42 U.S.C. 1983, N.K. has a viable claim for
compensatory damages, costs, and attorney fees as set forth in 42 U.S.C. 1988.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award

in his favor and against Defendants in an amount in excess of Seventy-Five Thousand Dollars
($75,000.00) exclusive of costs, interest, and attorney fees as well as an award of punitive
damages.
COUNT III
GROSS NEGLIGENCE
34.

Plaintiff realleges and incorporates by reference each and every paragraph of this
Complaint as though fully set forth herein.

35.

The City of Battle Creek and Defendant Rivera were engaged in the exercise or discharge
of a governmental function.

36.

The conduct of Defendants amounted to gross negligence that was the proximate cause of
N.K.s severe injuries and damages.

37.

Defendant Rivera was working for the City of Battle Creek Police Department at the time
of the incident complained of herein and had a duty to perform his employment activities
so as not to endanger or cause harm to N.K.

38.

Notwithstanding these duties, Defendant Rivera breached these duties with deliberate
indifference and gross negligence and without regard to N.K.s rights and welfare, which
caused him to sustain severe life threatening injuries and damages.

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39.

Defendant Rivera knew or should have known that by breaching these duties, harm
would come to N.K.

40.

That according to MCL 691.1407(2), Defendant Rivera had a duty to exercise reasonable
care and his breach of that duty was reckless and amounts to gross negligence.

41.

That as a direct and proximate result of the indifferent/grossly negligent acts and/or
omissions committed by Defendant Rivera, N.K. suffered life threatening injuries and
damages.

42.

The actions of Defendant Rivera was so egregious and so outrageous that N.K.s
damages were heightened and made more severe, thus Plaintiff is entitled to exemplary
damages.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an award

in his favor and against Defendants in an amount in excess of Seventy-Five Thousand Dollars
($75,000.00) exclusive of costs, interest, and attorney fees as well as an award of punitive
damages.
Respectfully Submitted,
CHRISTOPHER TRAINOR & ASSOCIATES
s/Christopher J. Trainor
CHRISTOPHER J. TRAINOR (P42449)
AMY J. DEROUIN (P70514)
Attorneys for Plaintiff
9750 Highland Road
White Lake, Michigan 48386
(248) 886-8650
May 2, 2016
CJT/kak

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
N.K, a Minor, by and through his
Next Friend, PATRICIA NELSON
Plaintiff,
CASE NO:
HON:

v
CITY OF BATTLE CREEK, and
ESTEBAN RIVERA, in his individual
and official capacity,
Defendants.

CHRISTOPHER TRAINOR & ASSOCIATES

CHRISTOPHER J. TRAINOR (P42449)
AMY J. DEROUIN (P70514)
Attorneys for Plaintiff
9750 Highland Road
White Lake, MI 48386
(248) 886-8650
(248) 698-3321-fax
Amy.derouin@cjtrainor.com

DEMAND FOR TRIAL BY JURY

NOW COMES Plaintiff by and through his attorneys, CHRISTOPHER TRAINOR &
ASSOCIATES, and hereby makes a Demand for Trial by Jury in the above-entitled cause.
Respectfully Submitted,
CHRISTOPHER TRAINOR & ASSOCIATES
s/Christopher J. Trainor
CHRISTOPHER J. TRAINOR (P42449)
AMY J. DEROUIN (P70514)
Attorneys for Plaintiff
9750 Highland Road
White Lake, Michigan 48386
(248) 886-8650
May 2, 2016
CJT/kak