This complaint was dismissed primarily for failure to obtain
personal jurisdiction over the named defendant, Gregory Parks,
a resident of Florida with no California connections. The complaint will be refiled shortly under the Federal Torts Claim Act.
Michael R. Mitchell
State Bar No. 48348
200 N. Larchmont Boulevard
Los Angeles, CA 90004-3707
Phone (213) 469-3995
Fred H. Klonsky
State Bar No. 66449
5850 Canoga Avenue, No. 110
Woodland Hills, CA 91367-6530
Phone (818) 992-4933
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
FRANK O. HOGAN, by his ) Case No. 97-6331-JMI (AIJx)
conservator, Sundra Hines, )
) COMPLAINT FOR VIOLATION OF
) FEDERAL REGULATION AND
Plaintiffs, ) CIVIL RIGHTS
)
v. ) (JURY TRIAL DEMANDED)
)
GREGORY PARKS, and DOES 1 )
through 100, )
)
Defendants. )
______________________________ )
Plaintiff alleges the following upon information and belief.
FIRST CAUSE OF ACTION
AGAINST DEFENDANTS PARKS AND DOE 1 THROUGH 50
FOR VIOLATION OF 28 C.F.R. Section 541.17(i)
1. This action arises under the United States Constitution, Bivens v. Six
Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971), and 28 C.F.R. Section
541.17(i) . The jurisdiction of this court is invoked under 28 U.S.C. Sections 1331
and 1343. [This action does not presently arise under 28 U.S.C. Sections 2671, et seq.
nor is the jurisdiction of the court invoked under 28 U.S.C. Section 1346(b). Statutory
claims are now on file with the U.S. as a precondition for suit under the Federal Tort
Claims Act. If those claims are not resolved and when time for suit is ripe, plaintiff
will seek leave to amend this complaint to set forth claims under the Federal Tort
Claims Act.]
2. Venue is proper in the Central District of California under 28 U.S.C. Section
1402(b) because plaintiff resides in said judicial district.
3. Plaintiff Frank O. Hogan is an adult, black male born October 25, 1970 who
presently resides at Sunset Manor, 2720 Nevada, El Monte, California within the
Central District of California. He is represented in this action by his mother, Sundra
Hines, his duly appointed and acting conservator of his person and his estate in
Superior Court for the State of California, County of Los Angeles Probate Case No.
LP 005 484.
4. Defendant Gregory Parks was the Warden at the Federal Correctional
Institution in Coleman, Florida. He is sued individually and in his official capacity.
5. The true names or capacities of defendants Does 1 through 100, whether
individual, corporate, associate or otherwise, are unknown to plaintiff who therefore
sues said defendants by such fictitious names. Plaintiff will amend the complaint to
show said defendants' true names and capacities when the same have been
ascertained. Plaintiff alleges upon information and belief that all defendants sued
herein as Does are in some manner responsible for the acts or omissions herein
alleged. The Does are sued individually and in their official capacities.
6. Plaintiff Sundra Hines is the natural mother of plaintiff Frank O. Hogan and
Sundra Hines resides at 2782 North Glen Avenue, Altadena, CA 91001.
7. At all times herein mentioned, defendants were acting under color and
pretense of statutes, ordinances, regulations, customs and usages of the United States
and/or the U.S. Department of Justice, and/or the Federal Bureau of Prisons.
8. In or about 1995, plaintiff was sentenced after conviction for a non-violent
crime to incarceration in a federal penitentiary. In about October, 1995, plaintiff was
an inmate of the Federal Corrections Institute at Terminal Island, California
("Terminal Island").
9. In about October, 1995, there was a riot and destruction of government
property at Terminal Island.
10. Ten days after the riot, plaintiff was charged in an Incident Report with (1)
rioting, (2) encouraging others to riot, and (3) destroying, altering, or damaging
property valued in excess of $100.
11. While plaintiff was still in California, on March 12, 1996 a Discipline
Hearing Officer (DHO) hearing was held on the above charges. The conclusion of
the Discipline Hearing Officer was "No prohibited act committed: Expunge according
to Inmate Discipline PS."
12. 28 C.F.R. Section 541.17(i) required expungement of the Incident Report
from plaintiff's file and prohibited its use in a manner "which would adversely affect
the inmate . . . . Institution staff may not use the existence of charged but unproved
misconduct against the inmate."
13. Does 1 and 2 had the legal duty to expunge the Incident Report from
plaintiff's file, but breached that duty by failing to expunge the Incident Report from
plaintiff's file.
14. Does 2 and 3 had (a) the legal duty not to use the Incident Report in a
manner which would adversely affect plaintiff and (b) the legal duty not to use the
existence of charged but unproved conduct against plaintiff.
15. Does 2 and 3 breached the foregoing duties by imposing upon plaintiff a
disciplinary transfer to the Federal Correctional Institution in Coleman, Florida (a
Medium Security prison) because of plaintiff's alleged "active " participation in
the above riot.
16. Does 2 and 3 well-knew that the Incident Report should have been
expunged from plaintiff's file and well-knew that plaintiff's alleged "active"
participation in the above riot had not been proven.
17. Defendant Gregory Parks, Warden of Coleman, and Does 4 and 5 had the
duties (a) not to use the Incident Report in a manner which would adversely affect
plaintiff, and (b) not to use the existence of charged but unproved conduct against
plaintiff, but breached those duties by (i) accepting the disciplinary transfer of
plaintiff to Coleman, (ii) punishing plaintiff, to wit, housing plaintiff in
Administrative Detention status at Coleman, and (iii) transferring plaintiff to a High
Security Institution, to wit, the U.S. Penitentiary in Atlanta, Georgia. Defendant
Gregory Parks and Does 4 and 5 were fully aware that the Incident Report should
have been or had been expunged and that plaintiff's alleged "active" participation
in the above riot had not been proven.
18. Does 6, 7 and 8 had the duties (a) not to use the Incident Report in a manner
which would adversely affect plaintiff, and (b) not to use the existence of charged but
unproved conduct against plaintiff, but breached those duties by (i) accepting the
disciplinary transfer of plaintiff to the U.S. Penitentiary in Atlanta, Georgia, and (ii)
housing and keeping plaintiff with dangerous, violent inmates at that penitentiary.
19. Does 6, 7, 8, 9, 10, and 11 placed plaintiff in an excessively dangerous and
insecure place.
20. By virtue of such placement, Does 6, 7, 8, 9, 10, and 11 had the legal duty
to safeguard plaintiff from reasonably foreseeable injury and harm and to provide
plaintiff with a safe and humane environment during incarceration.
21. On or about August 23, 1996, Does 6, 7, 8, 9, 10, and 11 knew or should
have known that plaintiff was situated during a "controlled movement" of inmates
such that it was reasonably foreseeable that plaintiff would be injured and harmed by
other inmates and that plaintiff was not in a safe or humane environment.
22. Notwithstanding such knowledge or putative knowledge, said defendants
failed, neglected and refused to take steps to prevent plaintiff from being injured or
harmed by other inmates, and failed and refused to place plaintiff in a safe or humane
environment.
23. As a direct legal result of the foregoing, and on or about August 23, 1996,
another inmate, Doe 12, physically attacked and severely injured plaintiff.
24. As a direct and legal result of the foregoing, plaintiff suffered severe
injuries to his mind and person. He has been discharged from custody and is now in a
critical care center in Los Angeles County. It appears that he is permanently paralyzed
and has life-threatening injuries.
25. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his
health, strength, and activity, sustaining injury to his body and shock and injury to his
mind and nervous system, which have caused and which will continue to cause Mr.
Hogan great physical, mental, and emotional pain and suffering, all to his general
damage in a sum which will be proven at the time of trial.
26. As a further proximate result of the foregoing, Mr. Hogan was required to
and did and will in the future, employ health care practitioners to examine, treat, and
care for him, and has and will in the future, incur medical and incidental expenses,
including prejudgment interest. The exact amount of such expenses is presently
unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the
exact amount thereof when the same has been ascertained.
27. As a further proximate result of the foregoing, Mr. Hogan has been, and will
continue to be, prevented from attending to his usual occupation, or any occupation, to
his further damage in a sum that he is presently unable to ascertain. Mr. Hogan will
seek leave to amend this complaint to set forth the exact amount thereof when the
same has been ascertained.
SECOND CAUSE OF ACTION
AGAINST DEFENDANTS PARKS
AND DOES 1 THROUGH 50
FOR DEPRIVATION OF CIVIL RIGHTS
28. Plaintiff restates and reiterates the foregoing paragraphs of this
complaint as if set forth in full at this point.
29. Plaintiff, as a convicted inmate had the right, under the Eighth Amendment,
to reasonable protection from physical violence by fellow inmates.
30. By their actions and inactions, recited below, defendants were deliberately
indifferent to plaintiff's right to reasonable protection from physical violence by
fellow inmates.
31. Does 1 and 2 had the legal duty to expunge the Incident Report from
plaintiff's file, but were deliberately indifferent to plaintiff's right to reasonable
protection from physical violence by fellow inmates in failing to expunge the Incident
Report from plaintiff's file.
32. Does 2 and 3 had (a) the legal duty not to use the Incident Report in a
manner which would adversely affect plaintiff and (b) the legal duty not to use the
existence of charged but unproved conduct against plaintiff.
33. Does 2 and 3 were deliberately indifferent to plaintiff's right to reasonable
protection from physical violence by fellow inmates by imposing upon plaintiff a
disciplinary transfer to the Federal Correctional Institution in Coleman, Florida (a
Medium Security prison) because of plaintiff's alleged "active" participation in the
above riot.
34. Does 2 and 3 well-knew that the Incident Report should have been
expunged from plaintiff's file and well-knew that plaintiff's alleged "active"
participation in the above riot had not been proven.
35. Defendant Gregory Parks, Warden of Coleman, and Does 4 and 5 had the
duties (a) not to use the Incident Report in a manner which would adversely affect
plaintiff, and (b) not to use the existence of charged but unproved conduct against
plaintiff.
36. Defendant Gregory Parks and Does 4 and 5 were deliberately indifferent to
plaintiff's right to reasonable protection from physical violence by fellow inmates by
(i) accepting the disciplinary transfer of plaintiff to Coleman, (ii) punishing plaintiff,
to wit, housing plaintiff in Administrative Detention status at Coleman, and (iii)
transferring plaintiff to a High Security Institution, to wit, the U.S. Penitentiary in
Atlanta, Georgia..
37. Defendant Gregory Parks and Does 4 and 5 were fully aware that the
Incident Report should have been or had been expunged and that plaintiff's alleged
"active" participation in the above riot had not been proven.
38. Does 6, 7 and 8 had the duties (a) not to use the Incident Report in a manner
which would adversely affect plaintiff, and (b) not to use the existence of charged but
unproved conduct against plaintiff, but were deliberately indifferent to plaintiff's
right to reasonable protection from physical violence by fellow inmates by (i)
accepting the disciplinary transfer of plaintiff to the U.S. Penitentiary in Atlanta,
Georgia, and (ii) housing and keeping plaintiff with dangerous, violent inmates at that
penitentiary.
39. Does 6, 7, 8, 9, 10, and 11 placed plaintiff in an excessively dangerous and
insecure place.
40. By virtue of such placement, Does 6, 7, 8, 9, 10, and 11 had the legal duty
to safeguard plaintiff from reasonably foreseeable injury and harm and to provide
plaintiff with a safe and humane environment during incarceration.
41. On or about August 23, 1996, Does 6, 7, 8, 9, 10, and 11 knew or should
have known that plaintiff was situated during a "controlled movement" of inmates
such that it was reasonably foreseeable that plaintiff would be injured and harmed by
other inmates and that plaintiff was not in a safe or humane environment.
Notwithstanding such knowledge or putative knowledge, said defendants failed and
refused, with deliberate indifference, to take steps to prevent plaintiff from being
injured or harmed by other inmates, and failed and refused, with deliberate
indifference, to place plaintiff in a safe or humane environment.
42. As a direct legal result of the foregoing, and on or about August 23, 1996,
another inmate, Doe 12, physically attacked plaintiff.
43. Does 9, 10, 11, 13, 14, and 15 had the legal duty to protect plaintiff from
attack and physical injury at the hands of another inmate, and to rescue him from such
an attack, and had the ability to do so, but, with deliberate indifference, failed and
refused to protect or rescue plaintiff.
44. As a direct and legal result of the foregoing, plaintiff suffered severe
injuries to his person and mind. He is now in a critical care center in Los Angeles
County. It appears that he is permanently paralyzed and has life-threatening injuries.
45. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his
health, strength, and activity, sustaining injury to his body and shock and injury to his
nervous system, which have caused and which will continue to cause Mr. Hogan great
physical, mental, and emotional pain and suffering, all to his general damage in a sum
which will be proven at the time of trial.
46. As a further proximate result of the foregoing, Mr. Hogan was required to
and did and will in the future, employ health care practitioners to examine, treat, and
care for him, and has and will in the future, incur medical and incidental expenses,
including prejudgment interest. The exact amount of such expenses is presently
unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the
exact amount thereof when the same has been ascertained.
47. As a further proximate result of the foregoing, Mr. Hogan has been, and
will continue to be, prevented from attending to his usual occupation, or any
occupation, to his further damage in a sum that he is presently unable to ascertain.
Mr. Hogan will seek leave to amend this complaint to set forth the exact amount
thereof when the same has been ascertained.
THIRD CAUSE OF ACTION
AGAINST DEFENDANTS PARKS
AND DOES 1 THROUGH 50
FOR DEPRIVATION OF CIVIL RIGHTS
48. Plaintiff restates and reiterates the foregoing paragraphs of this
complaint as if set forth in full at this point.
49. As a convicted and severely-injured inmate, plaintiff had the right under the
Eighth Amendment to adequate medical treatment which was not indifferent to his
serious medical needs.
50. Does 6, 7, 8, 16, 17, and 18 through 25 had the legal duty to assure that
plaintiff received prompt standard of care medical examination, diagnosis, treatment,
and care.
51. Said defendants, with deliberate indifference to plaintiff's serious medical
needs, failed to assure that plaintiff received prompt standard of care medical
examination, diagnosis, treatment, and/or care.
52. Does 26 through 50 had the legal duty at to render to plaintiff prompt
standard of care medical examination, diagnosis, treatment, and care.
53. Said defendants, with deliberate indifference to plaintiff's serious medical
needs, by failed to render to plaintiff prompt standard of care medical examination,
diagnosis, treatment, and care.
54. As a direct and legal result of the foregoing, plaintiff suffered severe
injuries to his person and mind. He is now in a critical care center in Los Angeles
County. It appears that he is permanently paralyzed and has life-threatening injuries.
55. As a legal result of the foregoing, Mr. Hogan was hurt and injured in his
health, strength, and activity, sustaining injury to his body and shock and injury to his
nervous system, which have caused and which will continue to cause Mr. Hogan great
physical, mental, and emotional pain and suffering, all to his general damage in a sum
which will be proven at the time of trial.
56. As a further proximate result of the foregoing, Mr. Hogan was required to
and did and will in the future, employ health care practitioners to examine, treat, and
care for him, and has and will in the future, incur medical and incidental expenses,
including prejudgment interest. The exact amount of such expenses is presently
unknown to Mr. Hogan who will seek leave to amend this complaint to set forth the
exact amount thereof when the same has been ascertained.
57. As a further proximate result of the foregoing, Mr. Hogan has been, and
will continue to be, prevented from attending to his usual occupation, or any
occupation, to his further damage in a sum that he is presently unable to ascertain.
Mr. Hogan will seek leave to amend this complaint to set forth the exact amount
thereof when the same has been ascertained.
PUNITIVE DAMAGES
58. All of the foregoing defendants acted with reckless or callous
indifference to plaintiff's federally protected rights, entitling plaintiff to punitive damages
according to proof at trial.
ATTORNEY'S FEES
59. Plaintiff has transferred and assigned all of his rights to waive, claim, apply for and
collect statutory attorney's fees to his attorneys. Should plaintiff prevail by
settlement, judgment or otherwise, plaintiff's attorneys shall be entitled to and will
apply for an award of attorney's fees to be collected from defendants.
WHEREFORE, plaintiff prays for judgment against defendants, and each of
them, jointly and severally, as follows:
1. For general damages according to proof at trial
2. For special damages according to proof at trial
3. For punitive damages according to proof at trial
4. For costs and reasonable attorney's fees
5. For such other and further relief as the court deems just and proper.
_____________________
MICHAEL R. MITCHELL
An Attorney for Plaintiff
DEMAND FOR JURY TRIAL
Plaintiff demands trial by jury of all issues properly triable by jury.
______________________
MICHAEL R. MITCHELL
An Attorney for Plaintiff