Case 3:14-cv-00409-SI

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Matthew G. McHenry, OSB No. 04357 matthew@levinemchenry.com Levine & McHenry LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Telephone: 503.546.3927 Fax: 503.224.3203 Of Attorneys for Plaintiff William Bayes

UNITED STATES DISTRICT COURT DISTRICT OF OREGON WILLIAM BAYES Plaintiff, vs. UNITED STATES OF AMERICA; FPS OFFICER ONE; FPS OFFICER TWO; FPS OFFICER THREE; FPS OFFICER FOUR (STUART) Defendants. ) Civil Case No. 3:14-cv-409 ) ) CIVIL ACTION ) ) DEMAND FOR JURY TRIAL ) ) ) ) ) ) )

COMPLAINT I. PRELIMINARY STATEMENT

18 1. This is an action brought under the Federal Tort Claims Act and the United States 19 20 21 22 23 24 Page 1 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

Constitution related to defendants unlawful conduct in unlawfully and unreasonably seizing plaintiff William Bayes, committing assault and battery against plaintiff William Bayes, and in unlawfully arresting and maliciously prosecuting plaintiff William Bayes.

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II. JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this Complaint under 28 U.S.C. 1331, 1346(b), and 1367. 3. On March 14, 2013, an Administrative Tort Claim was submitted by plaintiff to the Federal Protective Service (FPS). The claim was denied on November 5, 2013.

6 4. Venue is properly within this District under 28 U.S.C. 1042(b) as plaintiff resides in 7 8 9 10 11 12 13 14 15 16 Veterans (DAV) office within the regional office of the United States Department of Veterans 17 18 19 20 21 22 23 24 Affairs (USDVA). He is sued in his individual capacity. 8. Defendant FPS Officer Two was at all times relevant to this Complaint employed as an officer by the Federal Protective Service (FPS) and assigned to work at the Disabled American Veterans (DAV) office within the regional office of the United States Department of Veterans Affairs (USDVA). He is sued in his individual capacity. 9. Defendant FPS Officer Three was at all times relevant to this Complaint employed as an officer by the Federal Protective Service (FPS) and assigned to work at the Disabled American Page 2 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

Oregon and the actions at issue in this matter occurred in Portland, Oregon. III. PARTIES 5. Plaintiff William Bayes, who is 47 years old, was at all times relevant to this complaint a resident of Oregon. 6. Defendant United States of America is the appropriate defendant under the Federal Tort Claims Act. 7. Defendant FPS Officer One was at all times relevant to this Complaint employed as an officer by the Federal Protective Service (FPS) and assigned to work at the Disabled American

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Veterans (DAV) office within the regional office of the United States Department of Veterans Affairs (USDVA). He is sued in his individual capacity. 10. Defendant FPS Officer Four, who plaintiff believes has a last name of Stuart, was at all times relevant to this Complaint employed as an officer by the Federal Protective Service (FPS) and assigned to work at the Disabled American Veterans (DAV) office within the regional

6 office of the United States Department of Veterans Affairs (USDVA). He is sued in his 7 8 9 10 11 12 13 14 15 16 suffering from Post-Traumatic Stress Disorder, came to the Disabled American Veterans (DAV) 17 18 19 20 21 22 23 24 Page 3 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

individual capacity. 11. At all times relevant to this Complaint, defendants FPS Officer One, Two, Three, and Four (Stuart) were acting within the scope and course of their employment with the FPS. 12. At all times relevant to this Complaint, defendants FPS Officer One, Two, Three, and Four (Stuart) acted in concert and conspiracy and were jointly and severally responsible for the harms caused to plaintiff. IV. FACTUAL ALLEGATIONS 13. On the morning of December 12, 2012, plaintiff Bayes, a disabled American veteran

office within the regional office of the United States Department of Veterans Affairs on the second floor of the 100 SW Main Street building in Portland, OR, for an appointment. 14. Plaintiff Bayes had a knee brace on each knee and was walking with the aid of a cane. 15. The security checkpoint in the DAV office suite was staffed by three members of the Federal Protective Service (FPS)defendants FPS Officer One, Two, and Three.

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16. As Plaintiff Bayes placed personal items into the plastic tub to run through the security/x-ray scanner, defendant FPS Officer One, without the consent of plaintiff Bayes, reached into plaintiffs right front pocket and removed a pocketknife. 17. Defendant FPS Officer One instructed plaintiff Bayes that pocketknives were not permitted in the suite, and told plaintiff Bayes to take the knife back to his vehicle before

6 entering the suite. 7 8 9 10 11 12 13 14 15 16 21. Plaintiff Bayes once again began placing his personal items into the plastic tub to run 17 18 19 20 21 22 23 24 Page 4 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

18. Mr. Bayes agreed to return the pocketknife to his vehicle. As he was retrieving other personal property from the plastic tub, FPS Officer Two stepped forward and repeatedly yelled at plaintiff Bayes to get the weapon out of the office, in an elevated tone and while interrupting plaintiff Bayes. 19. Mr. Bayes exited the suite and building, put the two small pocketknives he was carrying in his truck as the FPS Officers instructed, and returned to the DAV office suite. 20. Upon plaintiff Bayess return to the suite, defendant FPS Officer Four (Stuart) was present at the security checkpoint.

through the security/x-ray scanner. Plaintiff Bayes placed his jacket and hat in the tub. Plaintiff Bayes lifted the right side of his shirt with his left hand to and removed the cell phone on his belt. 22. Plaintiff Bayes was about to remove a mini-Mag light flashlight and an empty Gerber knife sheath also on his belt when defendant FPS Officer Four (Stuart) grabbed plaintiff Bayess left hand and placed a handcuff on his left wrist.

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23. Defendant FPS Officer Four (Stuart) told plaintiff Bayes to turn around and place his hands behind his back, instructing him that he was under arrest for bringing a weapon onto federal property. 24. Plaintiff Bayes, to show he was not resisting or presenting a danger to anyone, stretched both of his arms out from the sides of his body.

6 25. Defendant FPS Officer Four (Stuart) told plaintiff Bayes to put his hands behind his 7 8 9 10 11 12 13 14 15 16 the back and delivering shocking and painful bolts of electricity. 17 18 19 20 21 22 23 24 30. One of the defendant FPS officers deployed another Taser on plaintiff Bayes, striking him in the neck and delivering shocking and painful bolts of electricity that caused plaintiff Bayes to fall to the ground. 31. The defendant FPS officers descended upon plaintiff Bayes, striking him multiple times in the head and back with knee strikes while placing him in handcuffs. 32. During the attack referenced in Paragraph 31, defendant FPS Officer Four (Stuart) again deployed his Taser at plaintiff Bayes, striking him in the left knee. Plaintiff Bayes was Page 5 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

back, before releasing plaintiff Bayess left arm and walking away from plaintiff Bayes, to plaintiff Bayess left. 26. Defendant FPS Officer Four (Stuart) drew his Taser, pointed it at plaintiff Bayes, and told him to put his hands behind his back or he would be Tased. 27. Defendant FPS Officer Four (Stuart) pulled the trigger on his Taser, which misfired. 28. Plaintiff Bayes turned around with his back to defendant Officer Four (Stuart) and put his hands behind his back. 29. Defendant FPS Officer Four (Stuart) deployed his Taser, striking plaintiff Bayes in

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wearing a brace on that knee, and also has metal screws inside the knee. The pain this caused was nearly unbearable. 33. The defendant FPS officers forcibly took plaintiff Bayes to the elevator. 34. Once outside the building, Plaintiff Bayes was transported by ambulance to the emergency room at Oregon Health and Sciences University for treatment of his injuries.

6 35. While in the hospital the defendant FPS officers gave plaintiff Bayes three citations 7 8 9 10 11 12 13 14 15 16 suffered substantial damages, including pain and suffering and emotional distress and harm. 17 18 19 20 21 22 23 24 V. CAUSES OF ACTION Count I Plaintiff v. Defendant United States of America Federal Tort Claims ActNegligence 38. Paragraphs 1-37 are incorporated herein by reference as though fully set forth. 39. The conduct of defendants FPS Officer One, Two, Three, and Four (Stuart) caused a foreseeable risk of harm to an interest of plaintiff of a kind that the law protects against negligent Page 6 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

for federal violations: Assault of a Federal Officer, Disorderly Conduct, and Failing to Conform with Lawful Direction. 36. All three charges were later dismissed. 37. As a retired Air Force Sergeant with a 10-year service record suffering from servicerelated PTSD and service-related physical disabilities, the incident that occurred took an enormous physical and psychological toll, shattering the sense of respect and honor that, until that point, plaintiff felt he received for his service to his country. As a direct and proximate result of the conduct of defendants FPS Officers One, Two, Three, and Four (Stuart), plaintiff

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invasion. In light of the risk, the conduct of defendants FPS Officer One, Two, Three, and Four (Stuart) was unreasonable, the conduct was the cause of plaintiffs harm, and the plaintiff was within the class of persons and plaintiffs injuries were within the general type of potential incidents and injuries that made defendants conduct negligent. 40. The actions of defendants FPS Officer One, Two, Three, and Four (Stuart) constitute

6 the tort of negligence under the laws of the State of Oregon. 7 8 9 10 11 12 13 14 15 16 ability to, and indeed did, carry their intention into effect. 17 18 19 20 21 22 23 24 Page 7 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

41. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. Count II Plaintiff v. Defendant United States of America Federal Tort Claims ActAssault 42. Paragraphs 1-37 are incorporated herein by reference as though fully set forth. 43. The conduct of defendants FPS Officer One, Two, Three, and Four (Stuart) constituted an attempt to cause harmful or offensive physical contact, and said defendants had the

44. The actions of defendants FPS Officer One, Two, Three, and Four (Stuart) constitute the tort of assault under the laws of the State of Oregon. 45. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions.

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Count III Plaintiff v. Defendant United States of America Federal Tort Claims ActBattery 46. Paragraphs 1-37 are incorporated herein by reference as though fully set forth. 47. Defendants FPS Officer One, Two, Three, and Four (Stuart) intended to cause

6 harmful or offensive physical contact with plaintiff Bayes, and such contact was caused by the 7 8 9 10 11 12 13 14 15 16 50. Paragraphs 1-37 are incorporated herein by reference as though fully set forth. 17 18 19 20 21 22 23 24 51. In taking plaintiff Bayes into custody, defendants FPS Officer One, Two, Three, and Four (Stuart) intentionally and unlawfully confined plaintiff Bayes, and plaintiff Bayes was aware of the confinement. 52. The actions of defendants FPS Officer One, Two, Three, and Four (Stuart) constitute the tort of false arrest under the laws of the State of Oregon. 53. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. Page 8 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

acts of said defendants. 48. The actions of defendants FPS Officer One, Two, Three, and Four (Stuart) constitute the tort of battery under the laws of the State of Oregon. 49. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. Count IV Plaintiff v. Defendant United States of America Federal Tort Claims ActFalse Arrest

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Count V Plaintiff v. Defendants FPS Officer One, Two, Three, and Four (Stuart) Federal Constitutional ClaimViolation of Fourth Amendment 54. Paragraphs 1-37 are incorporated herein by reference as though fully set forth. 55. The actions of defendants FPS Officer One, Two, Three, and Four (Stuart) deprived

6 plaintiff Bayes, a citizen and resident of the United States, of rights guaranteed to him in the 7 8 9 10 11 12 13 14 15 16 Plaintiff hereby demands a jury trial on Count V above. 17 18 19 20 21 22 23 24 Page 9 COMPLAINT
MATTHEW MCHENRY Attorney at Law LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR 97204 Tel: 503.546.3927 Fax: 503.224.3203

United States Constitution in that plaintiff Bayes was denied his constitutional right be free from police use of unnecessary, unreasonable, and excessive force without due process of law.

WHEREFORE, plaintiff Bayes respectfully requests: A. Compensatory damages as to all defendants; B. Punitive damages as to defendants FPS Officer One, Two, Three, and Four (Stuart); C. Reasonable attorneys fees and costs as to all defendants; D. Such other and further relief as may appear just and appropriate.

DATED this 12th day of March, 2014.

s/ Matthew G. McHenry Matthew McHenry, OSB No. 04357 Attorney for Plaintiff William Bayes