Winkelman V. The City of Austin; Ryan Herring; Irvin Williams; Matthew Carvalho; Brandon Reinarz; Fausto Rodriguez; Trinithad Garcia; Thomas Tuminelli; Quint Sebek; Ryan Tedford; Rolan Rast; Zachary Vandervalk; Andrew McRae; Ortho Duboise; John Ridenour;

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ELI WINKELMAN,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-875
§
AUSTIN POLICE DEPARTMENT, THE
§
CITY OF AUSTIN, TEXAS, OFFICER
§
RYAN HERRING, individually, et. al.,
§
Defendants.
§
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Eli Winkelman ("Winkelman") files this Original Complaint against Defendants
Austin Police Department (hereinafter "APD"), the Austin Police Department and City of Austin,
Texas (hereinafter "Austin,"), Officer Ryan Herring, individually, Officer Irvin Williams,
individually, Officer Matthew Carvalho, individually, Officer Brandon Reinarz, individually,
Officer Fausto Rodriguez, individually, Officer Trinithad Garcia, individually, Officer Thomas
Tuminelli, individually, Officer Quint Sebek, individually, Officer Ryan Tedford, individually,
Officer Rolan Rast, individually, Officer Zachary Vandervalk, individually, Officer Andrew
McRae, individually, Officer Ortho Duboise, individually, Officer John Ridenour, individually,
Officer Julian Ogle, individually, Officer Michael McMorrow, individually, Officer Stephen
Yurco, individually, Officer Daniel McLeish, individually, Officer Eric Scott, individually, Officer
Christopher Renzi, individually, Officer Jared Jordan, individually, Officer Jason Yoon,
individually, Officer Joseph Spees, individually, Officer Edward Jaramillo, individually, Officer
Chaz McGinnis, individually, Officer Alejandro Lopez, individually, Officer Corey Hale,
individually, Officer Paul Basaulto, individually, Officer Jamie Bryans, individually, Officer
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Justin Lockhart, individually, Officer Brent Pardinek, individually, Officer Ryan Mihalik,
individually, and Officer Richard Smith, individually (collectively, the "Officer Defendants"), for
the excessive force they inflicted on her as she was exercising her free speech and assembly rights
and demonstrating against police violence.
I. PARTIES
1.
Plaintiff Eli Winkelman is an individual who resides in Texas and during all times
relevant to the allegations of this complaint was a citizen of the United States.
2.
Defendant Austin Police Department is a unit of local government in the State of
Texas. Defendant will be extended the opportunity to accept service of process pursuant
to FRCP 4(d). If Defendant fails or refuses to accept service as requested, then the
Plaintiffs will request service of process pursuant to FRCP 4(e) upon Defendant.
3.
Defendant City of Austin, Texas is a unit of local government in the State of
Texas. Defendant will be extended the opportunity to accept service of process pursuant
to FRCP 4(d). If Defendant fails or refuses to accept service as requested, then the
Plaintiffs will request service of process pursuant to FRCP 4(e) upon Defendant.
4.
The Officer Defendants comprise the male APD officers whom the City of Austin
has identified as being present at the August 29, 2020 protest. Plaintiff has undertaken a
good-faith effort to identify the two specific officers who used excessive force against her
but the City of Austin and APD have been unable or unwilling to narrow the field beyond
these officers; Plaintiff has therefore named all of them as defendants (the Officer
Defendants) at this time.
5.
Defendant Officer Ryan Herring is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
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protest. At all times relevant to this action, Defendant Officer Ryan Herring was a police
officer employed by APD to perform duties in the City of Austin. Defendant will be
extended the opportunity to accept service of process pursuant to FRCP 4(d). If Defendant
fails or refuses to accept service as requested, then the Plaintiffs will request service of
process pursuant to FRCP 4(e) upon Defendant.
6.
Defendant Officer Irvin Williams is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
7.
Defendant Officer Matthew Carvalho is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
8.
Defendant Officer Brandon Reinarz is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
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to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
9.
Defendant Officer Fausto Rodriguez is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
10.
Defendant Officer Trinithad Garcia is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
11.
Defendant Officer Thomas Tuminelli is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
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service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
12.
Defendant Officer Quint Sebek is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
13.
Defendant Officer Ryan Tedford is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
14.
Defendant Officer Rolan Rast is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
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15.
Defendant Officer Zachary Vandervalk is a United States and Texas citizen and
an Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
16.
Defendant Officer Andrew McRae is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
17.
Defendant Officer Ortho Duboise is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
18.
Defendant Officer John Ridenour is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
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protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
19.
Defendant Officer Julian Ogle is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
20.
Defendant Officer Michael McMorrow is a United States and Texas citizen and
an Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
21.
Defendant Officer Stephen Yurco is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
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to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
22.
Defendant Officer Daniel McLeish is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
23.
Defendant Officer Eric Scott is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
24.
Defendant Officer Christopher Renzi is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
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service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
25.
Defendant Officer Jared Jordan is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
26.
Defendant Officer Jason Yoon is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
27.
Defendant Officer Joseph Spees is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
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28.
Defendant Officer Edward Jaramillo is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
29.
Defendant Officer Chaz McGinnis is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
30.
Defendant Officer Alejandro Lopez is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
31.
Defendant Officer Corey Hale is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
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all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
32.
Defendant Officer Paul Basulto is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD to
perform duties in the City of Austin. Defendant will be extended the opportunity to accept
service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept service
as requested, then the Plaintiffs will request service of process pursuant to FRCP 4(e)
upon Defendant.
33.
Defendant Officer Jamie Bryans is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
34.
Defendant Officer Justin Lockhart is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
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to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
35.
Defendant Officer Brent Pardinek is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
36.
Defendant Officer Ryan Mihalik is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
37.
Defendant Officer Richard Smith is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD to perform duties in the City of Austin. Defendant will be extended the opportunity
to accept service of process pursuant to FRCP 4(d). If Defendant fails or refuses to accept
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service as requested, then the Plaintiffs will request service of process pursuant to FRCP
4(e) upon Defendant.
II. JURISDICTION
38.
This action is brought pursuant to 42 U.S.C. §§ 1983, 1988 and the First, Fourth,
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
39.
Jurisdiction is conferred upon this Court by 28 U.S.C. § 1343(a)(3), (4) relating to
actions arising under 42 U.S.C. § 1983 and by 28 U.S.C. § 1331 (federal question).
III.
VENUE
40.
Venue is proper in the United States District Court for the Western District of
Texas, Austin Division, pursuant to 28 U.S.C. § 1391. Plaintiff's claims arose in whole
or in part in the Western District of Texas.
IV.
FACTUAL ALLEGATIONS
41.
Plaintiff Winkelman attended a protest rally and march that started at the Seaholm
Retail District on August 29, 2020. The rally was meant to commemorate the life of
George Floyd, Michael Ramos, and other people who were killed in police shootings.
42.
The purpose of the protest was to end police brutality and the use of violence and
excessive force.
43.
The march began at about 7 PM. Around 50 people attended.
44.
Protestors have a First Amendment right to free expression and peaceful assembly.
45.
Disproportionate use of force by police officers can turn an otherwise peaceful
protest violent.
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46.
This was a peaceful protest.
47.
Protestors, including Plaintiff Winkelman, were within their rights to free
expression and peaceful assembly.
48.
Plaintiff Winkelman attended this event to express her view that police brutality
is wrong, and has no place in Austin, Texas and to document the event by filming it with
her phone.
49.
Around 8:15 PM, when the marchers were walking in the street near the corner of
Congress Avenue and Cesar Chavez Street, APD officers aggressively approached the
marchers and demanded that they move from the street to the sidewalks nearby.
50.
Marchers attempted to comply with orders, but APD officers began pepper
spraying and violently arresting them immediately after demanding they move.
51.
The Austin Police department has repeatedly used physical force, chemical
irritants such as tear gas and pepper spray, and kinetic impact projectiles as a first resort
tactic against peaceful protestors rather than as a response to any sort of actual threat or
violence.
52.
Here, there was no threat of violence from the protestors. The Austin Police
Department caused the violence.
53.
Instead of de-escalating the situation, APD officers created a potentially
dangerous situation by immediately resorting to physical force against peaceful
protestors.
54.
Plaintiff Winkelman was filming the officers when they resorted to physical force.
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55.
Winkelman was filming the officers because she was concerned about the safety
of her friends and fellow protestors and wished to document the protest and the officers'
actions.
56.
Plaintiff Winkelman saw a member of her protest group being arrested and pepper
sprayed by APD officers. She walked toward the police officer who was arresting her
friend SO that she could videotape the incident.
57.
Within seconds, one of the Officer Defendants ("Officer Defendant 1") purposely
struck Plaintiff Winkelman's phone with which she was filming out of her hand.
58.
As Plaintiff Winkelman bent down to find the phone, she also began asking for
the police officer's badge number.
59.
Officer Defendant 1 ignored her request, took a few steps away from her, then
turned back around and forcefully pushed Plaintiff Winkelman.
60.
This use of force was excessive and unnecessary.
61.
Winkelman was acting within her rights to merely film the officers' violent
actions.
62.
In the next moment, another of the Officer Defendants ("Officer Defendant 2")
grabbed Plaintiff by the neck and violently slammed her to the ground, causing severe
pain and trauma.
63.
This use of force was also excessive and unnecessary.
64.
This use of force appears calculated only to cause harm to Winkelman, since she
was already on the sidewalk at the time the encounter with this officer began.
65.
There is no discernable reason to slam an unarmed young woman who poses no
threat to officer or public safety into the pavement, other than to harm her.
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66.
The two Officer Defendants were not attempting to effectuate an arrest of
Winkelman at the time, and she was not resisting or disobeying any directive or command
at the time.
67.
The two Officer Defendants simply used force against Winkelman for the sole
purpose of using force against her.
68.
Winkelman is a young woman who is approximately five feet four inches tall and
130 pounds.
69.
The two Officer Defendants who used force against her are significantly larger
than Winkelman.
70.
Winkelman posed no discernable threat to any of the officers at any time,
especially when considering the significant and obvious discrepancy in size between her
and the officers.
71.
At no point in time was any force warranted against Winkelman.
72.
Winkelman believes the fact that she happened to be wearing her bike helmet at
the time saved her from serious head injuries, as her head hit the pavement SO hard in this
incident that she suffered post-concussive syndrome from it even with the helmet.
73.
Plaintiff Winkelman was then lifted up by members of her protest group and taken
to safety, but she could not find her phone.
74.
She then returned to the area where she was slammed to the ground and saw her
cell phone and bike light on the ground behind APD officers. She asked the police officers
to return her belongings, but they never gave the items back.
75.
Retaining Winkelman's property without charge or arrest is unreasonable and
violates her rights to be free from unreasonable search and seizure.
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76.
Plaintiff Winkelman never recovered her property despite calling the APD phone
line to ask for help.
77.
Following the police assault of Plaintiff Winkelman, she had deep bruises on her
hips that gave her pain whenever she sat. Additionally, she had severe swelling in her
elbow, headaches for multiple days, and she likely had a concussion and suffered from
symptoms of post-concussive syndrome.
78.
A few weeks after the incident, Plaintiff Winkelman had to see a chiropractor for
her injuries because she was in SO much pain.
79.
Plaintiff Winkelman still fears police officers and is fearful that she may be
attacked again.
80.
The APD officers' attacks on Winkelman were shocking, unreasonable, and
would chill a person of ordinary firmness from continuing to engage in protected speech
and assembly.
81.
Video footage of the APD officers' attacks on Winkelman can be accessed at the
following link:
https://1drv.ms/u/s!AmR5VgwKtXTYioVsUeoLVVdhonmX4w?e=enaRow
82.
The City of Austin and Austin Police Department have an extensive history of
using excessive force against unarmed individuals and peaceful protesters, especially
when the protests concern police action and racial inequality, and particularly in the
summer of 2020.
83.
APD has a long history of employing excessive force against unarmed individuals
over the last few years.
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84.
These individuals include, but are not limited to, Jesus Hernandez, Pete
Hernandez, Sir Smith, Carlos Chacon, and Breaion King, an African-American
schoolteacher whose violent arrest in 2015 sparked nationwide outrage.
85.
APD also has a long history of killing unarmed individuals.
86.
These individuals include, but are not limited to, David Joseph, Larry Jackson, Jr.,
Kevin Brown, Byron Carter, Ahmede Bradley, Jason Roque, Nathan Sanders, Daniel
Rocha, and Michael Ramos.
87.
During the police violence protests in 2020, APD officers used excessive force
numerous times.
88.
For example, APD officers used grotesque excessive force against protestors on
May 30, 2021 by seriously injuring several people with "bean bag" shotgun rounds, and
otherwise attacking innocent protestors who posed no threat and were merely exercising
their First Amendment rights. APD officers also shoved and pushed protestors to the
ground using excessive and unnecessary force in those protests.
89.
Victims of APD excessive force include Jason Gallagher, Saraneka Martin, Levi
Ayala, Bomani Barton, Steven Arawn, Gemicah Volter-Jones, Meredith Williams, Nicole
Underwood, and Joe Herrera.
90.
Police force against Martin was not justified by any facts known to APD or its
officers.
91.
Police force against Gallagher was not justified by any facts known to APD or its
officers.
92.
Police force against Ayala was not justified by any facts known to APD or its
officers.
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93.
Police force against Barton was not justified by any facts known to APD or its
officers.
94.
Police force against Arawn was not justified by any facts known to APD or its
officers.
95.
Police force against Volter-Jones was not justified by any facts known to APD or
its officers.
96.
Police force against Williams was not justified by any facts known to APD or its
officers.
97.
Police force against Underwood was not justified by any facts known to APD or
its officers.
98.
Police force against Herrera was not justified by any facts known to APD or its
officers.
99.
APD did not refrain from the use of excessive force following the serious injuries
caused to protestors on May 30, 2020. Instead, the city of Austin and the Chief of Police
permitted APD to continue using excessive force.
100. As a consequence, APD injured many other innocent protestors, including Justin
Howell, Maredith Drake, Anthony Evans, Annette Chavez, Christen Warkoczewski, and
Samuel Kirsch.
101.
Police force against Howell was not justified by any facts known to APD or its
officers.
102.
Police force against Drake was not justified by any facts known to APD or its
officers.
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103. Police force against Evans was not justified by any facts known to APD or its
officers.
104. Police force against Chavez was not justified by any facts known to APD or its
officers.
105. Police force against Warkoczewski was not justified by any facts known to APD
or its officers.
106. Police force against Kirsch was not justified by any facts known to APD or its
officers.
107. Numerous officers watched all of the above incidents take place without
attempting to stop them, just like multiple officers watched and participated in the use of
excessive force against Plaintiff Winkelman.
108. It is, ironically, APD's policy and practice to use excessive force against anyone
who dares protest APD's use of excessive force.
109. The City of Austin was made aware of happened to Winkelman no later than
February 2, 2022, that two officers tried to inflict serious bodily injury on her for
peacefully protesting police violence. The City was given the footage of this event. The
City is well aware of that APD used excessive force on protestors. Yet, the City of Austin
has inexplicably failed to take any action to remedy this.
110.
On information and belief, APD is also well aware of the violence its officers used
against Winkelman and has footage of this event but has failed to discipline the officers
involved in any way or take reasonable steps to remedy this.
111. APD has a long-standing policy of providing paramilitary training for its officers
to act as "warriors," and to see conflict with members of the public as inevitable parts of
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 21 of 29
an "us (police) VS. them (civilians)" culture. Officers were trained to be "indifferent to
the community" according to a report commissioned by the city.
112. APD's training academy taught cadets, who later became APD officers, to act as
if they were at war with the community they were supposed to be protecting. In one
incident, an academy instructor told cadets that if "anyone here says that want to be a
police officer to 'help people, I will punch you in the face."
113. Another instructor told cadets to "pick someone out of a crowd and ask yourself
"how could I kill that person?"
114. A report commissioned by the City found that officers were trained to see "the
Austin community [as] the enemy."
115. Unsurprisingly, the report further found that "the culture of a police training
academy reflects the culture of a department and impacts the mindset and approach to
policing." The report concluded that the City must provide "training for handling protests
with non-militaristic approaches."
116. On information and belief, neither the City, APD, nor then-Chief Manley
reformed or changed the dangerous paramilitary culture of the police academy.
V.
CAUSE OF ACTION: EXCESSIVE FORCE IN VIOLATION OF 42 U.S.C. § 1983
117. Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
118.
Plaintiff Winkelman brings claims against the Officer Defendants, in their
individual capacities, pursuant to 42 U.S.C. § 1983 and § 1988 for excessive force.
119. Plaintiff Winkelman has a valid claim under this statute because Plaintiff
Winkelman has cognizable liberty interests to due process of law and to be free from the
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 22 of 29
use of excessive force without probable cause by a police officer pursuant to the Fourth,
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution.
120. Plaintiff Winkelman likewise has cognizable liberty interests to engage in free
speech and peaceably assemble and to be protected from retaliation for engaging in
protected speech under the First Amendment.
121.
Plaintiff Winkelman exercised her free speech and assembly rights by attending
the demonstration against police violence, demonstrating near officers, and filming the
officers' conduct at the protest.
122. Winkelman was deprived of her liberty interest when she was assaulted by two of
the Officer Defendants.
123. The Officer Defendants acted under color of their office and employment as
officers for APD.
124. The two Officer Defendants' use of excessive force against Plaintiff Winkelman
took place under color of law. At all times, the officers acted within the course and scope
of their employment with APD and under the color of law.
125. The two Officer Defendants were aware that their conduct was unlawful and
violated Plaintiff Winkelman's civil rights by using excessive force against her without
probable cause for alleged crimes.
126.
Officer Defendant 1's use of force was unreasonable under the circumstances and
thus excessive. Plaintiff Winkelman was not engaging in any criminal activity, she was
simply asking the police officer for his badge number after Officer Defendant 1 knocked
her phone out of her hand and forcefully shoved her. Plaintiff Winkelman posed no threat
to Officer Defendant 1.
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 23 of 29
127. Officer Defendant 2's use of force was unreasonable under the circumstances and
thus excessive. Plaintiff Winkelman was not engaging in any criminal activity. Officer
Defendant 1 had just forcefully shoved her when Officer Defendant 2 grabbed her by the
neck and slammed her to the pavement. Plaintiff Winkelman posed no threat to Officer
Defendant 2.
128.
Plaintiff Winkelman has suffered a violation of her civil rights as protected by the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution
in violation of 42 U.S.C. § 1983 and § 1988.
VI.
CAUSE OF ACTION: MONELL LIABILITY, CITY OF AUSTIN AND
THE AUSTIN POLICE DEPARTMENT
129.
Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
130.
Plaintiffs bring claims against the City of Austin and APD under 42 U.S.C. § 1983
and Monell V. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
131. Plaintiff Winkelman has cognizable liberty interests to be free from excessive
force pursuant to the Fourth, Fifth, Eight, and Fourteenth Amendments to the United
States Constitution.
132.
Plaintiff Winkelman likewise has cognizable liberty interests to engage in free
speech and peaceably assemble and to be protected from retaliation for engaging in
protected speech under the First Amendment.
133. Plaintiff Winkelman exercised her free speech and assembly rights by attending
the demonstration against police violence, demonstrating near officers, and filming the
officers' conduct at the protest.
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 24 of 29
134.
The Chief of Police of APD (including former APD Chief Brian Manley and
current APD Chief Joseph Chacon) is responsible for establishing the policies, rules,
regulations, ordinances, and procedures under which each and every one of the APD
employees must act.
135. APD and Austin had a de facto policy or custom of using excessive force against
protesters, even in the absence of any probable cause.
136. The use of excessive force against the citizens of Austin, Texas, including
Plaintiff, by members of APD is SO widespread and pervasive as to have the force of law.
137. The use of excessive force against protestors Austin, Texas, including Plaintiff,
by members of APD is SO widespread and pervasive as to have the force of law.
138. Further, the lack of policies and procedures to provide for the safe and lawful
treatment of individuals detained or engaged by the police amounts to a widespread
practice that, although not explicitly authorized by written law or express municipal
policy, is SO permanent and well-settled as to constitute a custom or usage with the force
of law.
139.
The lack of established policies, rules, regulations, and procedures caused the
violation of Plaintiff's civil rights under the United States Constitution, and,
consequently, the damages suffered by Plaintiff.
140. On information and belief, the policymakers within APD and the City of Austin
actually or constructively knew or should have known that the lack of policy, rule,
regulation or procedure would cause this type of civil rights violation. This is because of
the widespread nature of the custom, general knowledge of its existence, and numerous
opportunities and responsibilities of the responsible policymakers to be informed.
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 25 of 29
141. Manley and Chacon, as Chief of Police for Austin and APD, are policymakers
with respect to Austin and the APD. As Chief, Manley and Chacon have final
policymaking authority by direct delegation from the City of Austin governing body, both
express and implied, with respect to the unconstitutional actions taken by APD and its
officers, as well as the lack of action taken in response to constitutional violations.
142. Former Chief Manley and Chief Chacon ratified the unconstitutional actions of
the Officer Defendants, specifically Officer Defendants 1 and 2.
143. As stated in paragraphs 9-84, above, the violation of Plaintiff's rights by
Defendants was not an isolated incident; violating the rights of Plaintiff and those
similarly situated to Plaintiffs was the rule, not the exception, of the City of Austin by and
through the APD.
144.
Former Chief Manley and Chief Chacon knew, as any reasonable policymaker
would also know, that as a direct and proximate consequence of such practices, that
innocent people like Plaintiff Winkelman would be seriously injured and victimized, and
their constitutional rights violated.
145.
As a direct and proximate result of APD's policies and practices of using excessive
force, numerous protestors suffered severe and devastating injuries, as well as violations
of constitutional rights.
146. As policymaker for the City, former Chief Manley and Chief Chacon explicitly
approved the officers' actions, thus imputing liability to the County. See Davidson V. City
of Stafford, 848 F.3d 384, 395-396 (5th Cir. 2017), as revised (Mar. 31, 2017) (citing
Monell, 436 U.S. at 690-91)]. Ratification of an officer's decision by a policymaker with
final decision-making authority may constitute the official policy of the municipality. See
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 26 of 29
City of St. Louis V. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926, 99 L. Ed. 2d 107
(1988).
147. To Plaintiff's knowledge, no officer has been disciplined by APD for using
excessive force against Plaintiff Winkelman, nor has any officer been disciplined for
tolerating, authorizing, or endorsing this type of unconstitutional conduct.
VII.
CAUSE OF ACTION: INADEQUATE TRAINING,
AUSTIN POLICE DEPARTMENT AND THE CITY OF AUSTIN
148. Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
149.
Plaintiff brings claims against the City of Austin and the Austin Police Department
under 42 U.S.C. § 1983 and Monell V. Department of Social Services of the City of New
York, 436 U.S. 658 (1978).
150.
APD and the City of Austin provided inadequate training and supervision, leading
to the constitutional violations in this case.
151. The training and supervision policy procedures of the City of Austin's
policymaker were inadequate, the City of Austin's policymaker was deliberately
indifferent in adopting such policies, and the inadequate training and supervision policies
directly caused Plaintiff's injury and the violations of her constitutional rights.
152.
This inadequate training and supervision includes but is not limited to failing to
adequately discipline officers, failing to adequately supervise officers, failing to
adequately train officers concerning de-escalation of force, crowd control, and use of
force against non-violent protestors, failing to train officers regarding demonstrators' free
speech and assembly rights, training officers to act as paramilitary "warriors" and creating
an "us VS them" culture where officers were "at war" with the community that they were
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 27 of 29
supposed to be serving, which encouraged officers to use excessive force, and failing to
train or instruct officers about specific incidents it considers unreasonable, excessive
force, or in violation of the Constitution
153. These violations include but are not limited to the unlawful and unwarranted
violent shoving and slamming into pavement of Plaintiff Winkelman, and taking away
her personal property, and retaliation against Plaintiff for exercising her First Amendment
rights.
154. The City of Austin and APD failed to train their officers to avoid using excessive
force in situations where force is not warranted. This predictably led to the violations of
citizens' constitutional rights, including the rights of the Plaintiff in this case.
VIII.
DAMAGES
155.
As a result of Defendants' unlawful conduct, Plaintiff has suffered economic and
actual damages, including past and future pain and mental anguish, past and future
pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of
earning capacity, loss of enjoyment of life, injury to professional standing, injury to
character and reputation, and other pecuniary and non-pecuniary losses.
IX.
COMPENSATORY DAMAGES
156.
Plaintiff additionally brings suit for compensatory damages, including emotional
pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to
professional standing, injury to character and reputation, lost earning capacity in the past
and future, and other pecuniary and non-pecuniary losses.
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 28 of 29
X.
PUNITIVE DAMAGES
157. The conduct committed by the Officer Defendants against Plaintiff is the type of
conduct demonstrating malice or reckless indifference to the rights of the Plaintiff.
Therefore, Plaintiff additionally brings suit for punitive damages.
XI.
ATTORNEYS' FEES AND EXPERT FEES
158. Plaintiff seeks all reasonable and necessary attorneys' fees in this case, including
preparation and trial of this lawsuit, post-trial, pre-appeal legal services, and any appeals.
Plaintiff additionally brings suit for expert fees.
159. As a result of Defendants' conduct and their deliberate indifference to Plaintiff's
rights, Plaintiff was forced to retain counsel.
XII.
DEMAND FOR JURY TRIAL
160.
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a
trial by jury of all the issues in this case and tenders herewith the requisite jury fee.
XIII.
PRAYERS FOR RELIEF
161. WHEREFORE, cause having been shown, Plaintiff prays for, on trial of this just
cause, judgment against Defendants as follows:
a. Judgement against Defendants for violations of Plaintiff's civil rights, under 42
U.S.C. § 1983 and § 1988;
b. Judgement jointly and severally against Defendants for the following damages:
i.
Damages for medical expenses in the past and future;
ii.
Damages for pain and suffering in the past and future;
Case 1:22-cv-00875-LY Document 1 Filed 08/26/22 Page 29 of 29
iii.
Damages for mental anguish in the past and future;
iv.
Damages for impairment in the past and future;
V.
Exemplary damages against the Officer Defendants;
vi.
Reasonable attorneys' fees and costs of court;
vii.
Pre-judgement and post-judgement interest as allowed by law; and
viii.
Such other and further relief at law or in equity, special, or general to which
Plaintiff may show herself to be justly entitled.
Respectfully Submitted,
KAPLAN LAW FIRM, PLLC
3901 S. Lamar Blvd. # 260
Austin, Texas 78704
Telephone: (512) 553-9390
Telecopier: (512) 692-2788
www.kaplanlawatx.com
By: /s/ Matthew Caponi
Austin Kaplan
State Bar No. 24072176
Matthew "Maff" Caponi
State Bar No. 24109154
Andrew Eckhous
State Bar No. 24127926
akaplan@kaplanlawatx.com
mcaponi@kaplanlawatx.com
aeckhous@kaplanlawatx.com
JS 44 (Rev. 10/20)
Case 1:22-cv-00875 CIVIL DDC SHEET 08/26/22 Page 1 of 2
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Eli Winkelman
Austin Police Department, The City of Austin, Officer Ryan
(b) County of Residence of First Listed Plaintiff
Travis
County of Residence of First Listed Defendant
Travis
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
Kaplan Law Firm, PLLC, 3901 S. Lamar Blvd., #260
Austin, Texas 78704
II. BASIS OF JURISDICTION
(Place an "X" in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES
(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only)
and One Box for Defendant)
1
U.S. Government
3 Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
1
1 Incorporated or Principal Place
4
4
of Business In This State
2 U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3 Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions.
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
880 Defend Trade Secrets
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
Act of 2016
(15 USC 1681 or 1692)
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
485 Telephone Consumer
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
SOCIAL SECURITY
Protection Act
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
861 HIA (1395ff)
490 Cable/Sat TV
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
862 Black Lung (923)
850 Securities/Commodities/
362 Personal Injury
Product Liability
751 Family and Medical
863 DIWC/DIWW (405(g))
Exchange
Medical Malpractice
Leave Act
864 SSID Title XVI
890 Other Statutory Actions
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
865 RSI (405(g))
891 Agricultural Acts
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
893 Environmental Matters
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
FEDERAL TAX SUITS
895 Freedom of Information
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
870 Taxes (U.S. Plaintiff
Act
240 Torts to Land
443 Housing/
Sentence
or Defendant)
896 Arbitration
245 Tort Product Liability
Accommodations
530 General
871 IRS-Third Party
899 Administrative Procedure
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
26 USC 7609
Act/Review or Appeal of
Employment
Other:
462 Naturalization Application
Agency Decision
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
950 Constitutionality of
Other
550 Civil Rights
Actions
State Statutes
448 Education
555 Prison Condition
560 Civil Detainee
Conditions of
Confinement
V. ORIGIN
(Place an "X" in One Box Only)
1 Original
2 Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation -
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 1983 and § 1988, 436 U.S. 658 (1978)
VI. CAUSE OF ACTION
Brief description of cause:
Excessive Force, Monell Liability, and Inadequate Training
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
August 26, 2022
/s/ Matthew Caponi
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 10/20)
Case 1:22-cv-00875-LY Document 1-1 Filed 08/26/22 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b)
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V.
Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation - Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation - Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 1 of 20
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ELI WINKELMAN,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-875
§
THE CITY OF AUSTIN, TEXAS, OFFICER
§
QUINT SEBEK, individually, AND
§
OFFICER THOMAS TUMINELLI,
§
individually,
§
Defendants
PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Eli Winkelman ("Winkelman") files this First Amended Complaint against
Defendants the City of Austin, Texas (hereinafter "Austin," or "APD"), Officer Quint Sebek
("Sebek"), individually, and Officer Thomas Tuminelli ("Tuminelli), individually, (Sebek and
Tuminelli hereinafter collectively, the "Officer Defendants"), for the excessive force they inflicted
on her as she was exercising her free speech and assembly rights and demonstrating against police
violence.
I. PARTIES
1.
Plaintiff Eli Winkelman is an individual who resides in Texas and during all times
relevant to the allegations of this complaint was a citizen of the United States.
2.
Defendant City of Austin, Texas is a unit of local government in the State of
Texas. The Austin Police Department ("APD") is a Department of the City of Austin.
Defendant has been served.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 2 of 20
3.
Defendant Officer Quint Sebek is a United States and Texas citizen and an Officer
with the Austin Police Department who was present at the August 29, 2020 protest. At
all times relevant to this action, Defendant was a police officer employed by APD and the
City of Austin to perform duties in the City of Austin. Defendant will be extended the
opportunity to accept service of process pursuant to FRCP 4(d). If Defendant fails or
refuses to accept service as requested, then the Plaintiffs will request service of process
pursuant to FRCP 4(e) upon Defendant.
4.
Defendant Officer Thomas Tuminelli is a United States and Texas citizen and an
Officer with the Austin Police Department who was present at the August 29, 2020
protest. At all times relevant to this action, Defendant was a police officer employed by
APD and the City of Austin to perform duties in the City of Austin. Defendant will be
extended the opportunity to accept service of process pursuant to FRCP 4(d). If Defendant
fails or refuses to accept service as requested, then the Plaintiffs will request service of
process pursuant to FRCP 4(e) upon Defendant.
II. JURISDICTION
5.
This action is brought pursuant to 42 U.S.C. §§ 1983, 1988, and the First, Fourth,
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
6.
Jurisdiction is conferred upon this Court by 28 U.S.C. § 1343(a)(3), (4) relating to
actions arising under 42 U.S.C. § 1983 and by 28 U.S.C. § 1331 (federal question).
III.
VENUE
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 3 of 20
7.
Venue is proper in the United States District Court for the Western District of
Texas, Austin Division, pursuant to 28 U.S.C. § 1391. Plaintiff's claims arose in whole
or in part in the Western District of Texas.
IV.
FACTUAL ALLEGATIONS
8.
Plaintiff Winkelman attended a protest rally and march that started at the Seaholm
Retail District on August 29, 2020. The rally was meant to commemorate the life of
George Floyd, Michael Ramos, and other people who were killed in police shootings.
9.
The purpose of the protest was to end police brutality and the use of violence and
excessive force.
10.
The march began at about 7 PM. Around 50 people attended.
11.
Protestors have a First Amendment right to free expression and peaceful assembly.
12.
Disproportionate use of force by police officers can turn an otherwise peaceful
protest violent.
13.
This was a peaceful protest.
14.
Protestors, including Plaintiff Winkelman, were within their rights to free
expression and peaceful assembly.
15.
Plaintiff Winkelman attended this event to express her view that police brutality
is wrong, and has no place in Austin, Texas and to document the event by filming it with
her phone.
16.
Around 8:15 PM, when the marchers were walking in the street near the corner of
Congress Avenue and Cesar Chavez Street, APD officers aggressively approached the
marchers and demanded that they move from the street to the sidewalks nearby.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 4 of 20
17.
Marchers attempted to comply with orders, but APD officers began pepper
spraying and violently arresting them immediately after demanding they move.
18.
The Austin Police Department has repeatedly used physical force, chemical
irritants such as tear gas and pepper spray, and kinetic impact projectiles as a first resort
tactic against peaceful protestors rather than as a response to any sort of actual threat or
violence.
19.
Here, there was no threat of violence from the protestors. The Austin Police
Department caused the violence.
20.
Instead of de-escalating the situation, APD officers created a potentially
dangerous situation by immediately resorting to physical force against peaceful
protestors.
21.
Plaintiff Winkelman was filming the officers when they resorted to physical force.
22.
Winkelman was filming the officers because she was concerned about the safety
of her friends and fellow protestors and wished to document the protest and the officers'
actions.
23.
Plaintiff Winkelman saw a member of her protest group being arrested and pepper
sprayed by APD officers. She walked toward the police officer who was arresting her
friend SO that she could videotape the incident.
24.
Within seconds, one of the Officer Defendants ("Officer Defendant 1") purposely
struck Plaintiff Winkelman's phone with which she was filming out of her hand.
25.
As Plaintiff Winkelman bent down to find the phone, she also began asking for
the police officer's badge number.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 5 of 20
26.
Officer Defendant 1 ignored her request, took a few steps away from her, then
turned back around and forcefully pushed Plaintiff Winkelman.
27.
This use of force was excessive and unnecessary.
28.
Winkelman was acting within her rights to merely film the officers' violent
actions.
29.
In the next moment, another of the Officer Defendants ("Officer Defendant 2")
grabbed Plaintiff by the neck and violently slammed her to the ground, causing severe
pain and trauma.
30.
This use of force was also excessive and unnecessary.
31.
This use of force appears calculated only to cause harm to Winkelman, since she
was already on the sidewalk at the time the encounter with this officer began.
32.
There is no discernable reason to slam an unarmed young woman who poses no
threat to officer or public safety into the pavement, other than to harm her.
33.
The two Officer Defendants were not attempting to effectuate an arrest of
Winkelman at the time, and she was not resisting or disobeying any directive or command
at the time.
34.
The two Officer Defendants simply used force against Winkelman for the sole
purpose of using force against her.
35.
Winkelman is a young woman who is approximately five feet four inches tall and
130 pounds.
36.
The two Officer Defendants who used force against her are significantly larger
than Winkelman.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 6 of 20
37.
Winkelman posed no discernable threat to any of the officers at any time,
especially when considering the significant and obvious discrepancy in size between her
and the officers.
38.
At no point in time was any force warranted against Winkelman.
39.
Winkelman believes the fact that she happened to be wearing her bike helmet at
the time saved her from serious head injuries, as her head hit the pavement SO hard in this
incident that she suffered post-concussive syndrome from it even with the helmet.
40.
Plaintiff Winkelman was then lifted up by members of her protest group and taken
to safety, but she could not find her phone.
41.
She then returned to the area where she was slammed to the ground and saw her
cell phone and bike light on the ground behind APD officers. She asked the police officers
to return her belongings, but they never gave the items back.
42.
Retaining Winkelman's property without charge or arrest is unreasonable and
violates her rights to be free from unreasonable search and seizure.
43.
Plaintiff Winkelman never recovered her property despite calling the APD phone
line to ask for help.
44.
Following the police assault of Plaintiff Winkelman, she had deep bruises on her
hips that gave her pain whenever she sat. Additionally, she had severe swelling in her
elbow, headaches for multiple days, and she likely had a concussion and suffered from
symptoms of post-concussive syndrome.
45.
A few weeks after the incident, Plaintiff Winkelman had to see a chiropractor for
her injuries because she was in SO much pain.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 7 of 20
46.
Plaintiff Winkelman still fears police officers and is fearful that she may be
attacked again.
47.
The APD officers' attacks on Winkelman were shocking, unreasonable, and
would chill a person of ordinary firmness from continuing to engage in protected speech
and assembly.
48.
Video footage of the APD officers' attacks on Winkelman can be accessed at the
following link:
https://1drv.ms/u/s!AmR5VgwKtXTYioVsUeoLVVdhonmX4w?e=enaRow
49.
The City of Austin, through the Austin Police Department, has an extensive
history of using excessive force against unarmed individuals and peaceful protesters,
especially when the protests concern police action and racial inequality, and particularly
in the summer of 2020.
50.
APD has a long history of employing excessive force against unarmed individuals
over the last few years.
51.
These individuals include, but are not limited to, Jesus Hernandez, Pete
Hernandez, Sir Smith, Carlos Chacon, and Breaion King, an African-American
schoolteacher whose violent arrest in 2015 sparked nationwide outrage.
52.
APD also has a long history of killing unarmed individuals.
53.
These individuals include, but are not limited to, David Joseph, Larry Jackson, Jr.,
Kevin Brown, Byron Carter, Ahmede Bradley, Jason Roque, Nathan Sanders, Daniel
Rocha, and Michael Ramos.
54.
During the police violence protests in 2020, APD officers used excessive force
numerous times.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 8 of 20
55.
For example, APD officers used grotesque excessive force against protestors on
May 30, 2021 by seriously injuring several people with "bean bag" shotgun rounds, and
otherwise attacking innocent protestors who posed no threat and were merely exercising
their First Amendment rights. APD officers also shoved and pushed protestors to the
ground using excessive and unnecessary force in those protests.
56.
Victims of APD excessive force include Jason Gallagher, Saraneka Martin, Levi
Ayala, Bomani Barton, Steven Arawn, Gemicah Volter-Jones, Meredith Williams, Nicole
Underwood, and Joe Herrera.
57.
Police force against Martin was not justified by any facts known to APD or its
officers.
58.
Police force against Gallagher was not justified by any facts known to APD or its
officers.
59.
Police force against Ayala was not justified by any facts known to APD or its
officers.
60.
Police force against Barton was not justified by any facts known to APD or its
officers.
61.
Police force against Arawn was not justified by any facts known to APD or its
officers.
62.
Police force against Volter-Jones was not justified by any facts known to APD or
its officers.
63.
Police force against Williams was not justified by any facts known to APD or its
officers.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 9 of 20
64.
Police force against Underwood was not justified by any facts known to APD or
its officers.
65.
Police force against Herrera was not justified by any facts known to APD or its
officers.
66.
APD did not refrain from the use of excessive force following the serious injuries
caused to protestors on May 30, 2020. Instead, the city of Austin and the Chief of Police
permitted APD to continue using excessive force.
67.
As a consequence, APD injured many other innocent protestors, including Justin
Howell, Maredith Drake, Anthony Evans, Annette Chavez, Christen Warkoczewski, and
Samuel Kirsch.
68.
Police force against Howell was not justified by any facts known to APD or its
officers.
69.
Police force against Drake was not justified by any facts known to APD or its
officers.
70.
Police force against Evans was not justified by any facts known to APD or its
officers.
71.
Police force against Chavez was not justified by any facts known to APD or its
officers.
72.
Police force against Warkoczewski was not justified by any facts known to APD
or its officers.
73.
Police force against Kirsch was not justified by any facts known to APD or its
officers.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 10 of 20
74.
Numerous officers watched all of the above incidents take place without
attempting to stop them, just like multiple officers watched and participated in the use of
excessive force against Plaintiff Winkelman.
75.
It is, ironically, APD's policy and practice to use excessive force against anyone
who dares protest APD's use of excessive force.
76.
The City of Austin was made aware of happened to Winkelman no later than
February 2, 2022, that two officers tried to inflict serious bodily injury on her for
peacefully protesting police violence. The City was given the footage of this event. The
City is well aware of that APD used excessive force on protestors. Yet, the City of Austin
has inexplicably failed to take any action to remedy this.
77.
On information and belief, APD is also well aware of the violence its officers used
against Winkelman and has footage of this event but has failed to discipline the officers
involved in any way or take reasonable steps to remedy this.
78.
APD has a long-standing policy of providing paramilitary training for its officers
to act as "warriors," and to see conflict with members of the public as inevitable parts of
an "us (police) VS. them (civilians)" culture. Officers were trained to be "indifferent to
the community" according to a report commissioned by the city.
79.
APD's training academy taught cadets, who later became APD officers, to act as
if they were at war with the community they were supposed to be protecting. In one
incident, an academy instructor told cadets that if "anyone here says that want to be a
police officer to 'help people," I will punch you in the face."
80.
Another instructor told cadets to "pick someone out of a crowd and ask yourself
'how could I kill that person?"
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 11 of 20
81.
A report commissioned by the City found that officers were trained to see "the
Austin community [as] the enemy."
82.
Unsurprisingly, the report further found that "the culture of a police training
academy reflects the culture of a department and impacts the mindset and approach to
policing." The report concluded that the City must provide "training for handling protests
with non-militaristic approaches."
83.
On information and belief, neither the City, APD, nor then-Chief Manley
reformed or changed the dangerous paramilitary culture of the police academy.
84.
Officer Thomas Tuminelli has a history of reckless, violent, and unlawful conduct
that is known to the City of Austin and APD.
85.
On May 23, 2020, Officer Tuminelli was speeding on Interstate 35 at times at an
average speed of 96 mph, tailgating a driver as well as cutting in front of him and braking,
which ultimately resulted in a crash.
86.
After the crash, Officer Tuminelli jumped out of his vehicle and brandished his
firearm at the other driver while engaging in a profanity-laced argument with the other
driver.
87.
Officer Tuminelli was ultimately suspended on November 11, 2020 through
January 9, 2021, and placed on probation for a year. As part of his suspension, Tuminelli
was required to be evaluated by an Austin police psychologist or another qualified
professional designated by then-chief Brian Manley, which could potentially have
resulted in placing him on leave.
88.
Although Tuminelli's reckless, dangerous, and violent conduct in this incident
occurred prior to his unlawful conduct in the August 29, 2020 protest, he was not
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 12 of 20
disciplined until November 11, 2020, after his unlawful conduct in the August 29, 2020
protest.
V.
CAUSE OF ACTION: EXCESSIVE FORCE IN VIOLATION OF 42 U.S.C. § 1983
89.
Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
90.
Plaintiff Winkelman brings claims against Defendants Officer Quint Sebek and
Officer Thomas Tuminelli, in their individual capacities, pursuant to 42 U.S.C. § 1983
and § 1988 for excessive force.
91.
Plaintiff Winkelman has a valid claim under this statute because Plaintiff
Winkelman has cognizable liberty interests to due process of law and to be free from the
use of excessive force without probable cause by a police officer pursuant to the Fourth,
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution.
92.
Plaintiff Winkelman likewise has cognizable liberty interests to engage in free
speech and peaceably assemble and to be protected from retaliation for engaging in
protected speech under the First Amendment.
93.
Plaintiff Winkelman exercised her free speech and assembly rights by attending
the demonstration against police violence, demonstrating near officers, and filming the
officers' conduct at the protest.
94.
Winkelman was deprived of her liberty interest when she was assaulted by
Defendants Sebek and Tuminelli.
95.
Defendants Sebek and Tuminelli acted under color of their office and employment
as officers for APD.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 13 of 20
96.
Defendants Sebek's and Tuminelli's use of excessive force against Plaintiff
Winkelman took place under color of law. At all times, the officers acted within the course
and scope of their employment with APD and under the color of law.
97.
Defendants Sebek and Tuminelli were aware that their conduct was unlawful and
violated Plaintiff Winkelman's civil rights by using excessive force against her without
probable cause for alleged crimes.
98.
Officer Defendant 1's use of force was unreasonable under the circumstances and
thus excessive. Plaintiff Winkelman was not engaging in any criminal activity, she was
simply asking the police officer for his badge number after Officer Defendant 1 knocked
her phone out of her hand and forcefully shoved her. Plaintiff Winkelman posed no threat
to Officer Defendant 1.
99.
Officer Defendant 2's use of force was unreasonable under the circumstances and
thus excessive. Plaintiff Winkelman was not engaging in any criminal activity. Officer
Defendant 1 had just forcefully shoved her when Officer Defendant 2 grabbed her by the
neck and slammed her to the pavement. Plaintiff Winkelman posed no threat to Officer
Defendant 2.
100. Plaintiff Winkelman has suffered a violation of her civil rights as protected by the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution
in violation of 42 U.S.C. § 1983 and § 1988.
VI.
CAUSE OF ACTION: MONELL LIABILITY, THE CITY OF AUSTIN
101.
Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
102. Plaintiffs bring claims against the City of Austin under 42 U.S.C. § 1983 and
Monell V. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 14 of 20
103. Plaintiff Winkelman has cognizable liberty interests to be free from excessive
force pursuant to the Fourth, Fifth, Eight, and Fourteenth Amendments to the United
States Constitution.
104. Plaintiff Winkelman likewise has cognizable liberty interests to engage in free
speech and peaceably assemble and to be protected from retaliation for engaging in
protected speech under the First Amendment.
105.
Plaintiff Winkelman exercised her free speech and assembly rights by attending
the demonstration against police violence, demonstrating near officers, and filming the
officers' conduct at the protest.
106. The Chief of Police of APD (including former APD Chief Brian Manley and
current APD Chief Joseph Chacon) is responsible for establishing the policies, rules,
regulations, ordinances, and procedures under which each and every one of the APD
employees must act.
107. The City of Austin had a de facto policy or custom of using excessive force against
protesters, even in the absence of any probable cause.
108. The use of excessive force against the citizens of Austin, Texas, including
Plaintiff, by members of APD is SO widespread and pervasive as to have the force of law.
109. The use of excessive force against protestors Austin, Texas, including Plaintiff,
by members of APD is SO widespread and pervasive as to have the force of law.
110. Further, the lack of policies and procedures to provide for the safe and lawful
treatment of individuals detained or engaged by the police amounts to a widespread
practice that, although not explicitly authorized by written law or express municipal
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 15 of 20
policy, is SO permanent and well-settled as to constitute a custom or usage with the force
of law.
111. The lack of established policies, rules, regulations, and procedures caused the
violation of Plaintiff's civil rights under the United States Constitution, and,
consequently, the damages suffered by Plaintiff.
112. On information and belief, the policymakers within the City of Austin actually or
constructively knew or should have known that the lack of policy, rule, regulation or
procedure would cause this type of civil rights violation. This is because of the widespread
nature of the custom, general knowledge of its existence, and numerous opportunities and
responsibilities of the responsible policymakers to be informed.
113. Manley and Chacon, as Chief of Police for Austin and APD, are policymakers
with respect to the City of Austin and APD. As Chief, Manley and Chacon have final
policymaking authority by direct delegation from the City of Austin governing body, both
express and implied, with respect to the unconstitutional actions taken by APD and its
officers, as well as the lack of action taken in response to constitutional violations.
114. Former Chief Manley and Chief Chacon ratified the unconstitutional actions of
the Officer Defendants, specifically Officer Defendants 1 and 2.
115. As stated in paragraphs 9-84, above, the violation of Plaintiff's rights by
Defendants was not an isolated incident; violating the rights of Plaintiff and those
similarly situated to Plaintiffs was the rule, not the exception, of the City of Austin by and
through the APD.
116. Former Chief Manley and Chief Chacon knew, as any reasonable policymaker
would also know, that as a direct and proximate consequence of such practices, that
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 16 of 20
innocent people like Plaintiff Winkelman would be seriously injured and victimized, and
their constitutional rights violated.
117. As a direct and proximate result of the City of Austin's policies and practices of
using excessive force, numerous protestors suffered severe and devastating injuries, as
well as violations of constitutional rights.
118. As policymaker for the City, former Chief Manley and Chief Chacon explicitly
approved the officers' actions, thus imputing liability to the County. See Davidson V. City
of Stafford, 848 F.3d 384, 395-396 (5th Cir. 2017), as revised (Mar. 31, 2017) (citing
Monell, 436 U.S. at 690-91)]. Ratification of an officer's decision by a policymaker with
final decision-making authority may constitute the official policy of the municipality. See
City of St. Louis V. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926, 99 L. Ed. 2d 107
(1988).
119.
To Plaintiff's knowledge, no officer has been disciplined by APD or the City of
Austin for using excessive force against Plaintiff Winkelman, nor has any officer been
disciplined for tolerating, authorizing, or endorsing this type of unconstitutional conduct.
VII.
CAUSE OF ACTION: INADEQUATE TRAINING,
THE CITY OF AUSTIN
120.
Plaintiff adopts and incorporates herein by reference all preceding paragraphs.
121.
Plaintiff brings claims against the City of Austin under 42 U.S.C. § 1983 and
Monell V. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
122. The City of Austin provided inadequate training and supervision, leading to the
constitutional violations in this case.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 17 of 20
123. The training and supervision policy procedures of the City of Austin's
policymaker were inadequate, the City of Austin's policymakers were deliberately
indifferent in adopting such policies, and the inadequate training and supervision policies
directly caused Plaintiff's injury and the violations of her constitutional rights.
124. This inadequate training and supervision includes but is not limited to failing to
adequately discipline officers, failing to adequately supervise officers, failing to
adequately train officers concerning de-escalation of force, crowd control, and use of
force against non-violent protestors, failing to train officers regarding demonstrators' free
speech and assembly rights, training officers to act as paramilitary "warriors" and creating
an "us VS them" culture where officers were "at war" with the community that they were
supposed to be serving, which encouraged officers to use excessive force, and failing to
train or instruct officers about specific incidents it considers unreasonable, excessive
force, or in violation of the Constitution.
125. These violations include but are not limited to the unlawful and unwarranted
violent shoving and slamming into pavement of Plaintiff Winkelman, and taking away
her personal property, and retaliation against Plaintiff for exercising her First Amendment
rights.
126.
The City of Austin failed to train its officers to avoid using excessive force in
situations where force is not warranted. This predictably led to the violations of citizens'
constitutional rights, including the rights of the Plaintiff in this case.
VIII.
DAMAGES
127.
As a result of Defendants' unlawful conduct, Plaintiff has suffered economic and
actual damages, including past and future pain and mental anguish, past and future
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 18 of 20
pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of
earning capacity, loss of enjoyment of life, injury to professional standing, injury to
character and reputation, and other pecuniary and non-pecuniary losses.
IX.
COMPENSATORY DAMAGES
128.
Plaintiff additionally brings suit for compensatory damages, including emotional
pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to
professional standing, injury to character and reputation, lost earning capacity in the past
and future, and other pecuniary and non-pecuniary losses.
X.
PUNITIVE DAMAGES
129.
The conduct committed by the Officer Defendants against Plaintiff is the type of
conduct demonstrating malice or reckless indifference to the rights of the Plaintiff.
Therefore, Plaintiff additionally brings suit for punitive damages.
XI.
ATTORNEYS' FEES AND EXPERT FEES
130.
Plaintiff seeks all reasonable and necessary attorneys' fees in this case, including
preparation and trial of this lawsuit, post-trial, pre-appeal legal services, and any appeals.
Plaintiff additionally brings suit for expert fees.
131. As a result of Defendants' conduct and their deliberate indifference to Plaintiff's
rights, Plaintiff was forced to retain counsel.
XII.
DEMAND FOR JURY TRIAL
132. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a
trial by jury of all the issues in this case and tenders herewith the requisite jury fee.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 19 of 20
XIII.
PRAYERS FOR RELIEF
133.
WHEREFORE, cause having been shown, Plaintiff prays for, on trial of this just
cause, judgment against Defendants as follows:
a. Judgement against Defendants for violations of Plaintiff's civil rights, under 42
U.S.C. § 1983 and § 1988;
b. Judgement jointly and severally against Defendants for the following damages:
i.
Damages for medical expenses in the past and future;
ii.
Damages for pain and suffering in the past and future;
iii.
Damages for mental anguish in the past and future;
iv.
Damages for impairment in the past and future;
V.
Exemplary damages against the Officer Defendants;
vi.
Reasonable attorneys' fees and costs of court;
vii.
Pre-judgement and post-judgement interest as allowed by law; and
viii.
Such other and further relief at law or in equity, special, or general to which
Plaintiff may show herself to be justly entitled.
Case 1:22-cv-00875-LY Document 2 Filed 09/28/22 Page 20 of 20
Respectfully Submitted,
KAPLAN LAW FIRM, PLLC
3901 S. Lamar Blvd. # 260
Austin, Texas 78704
Telephone: (512) 553-9390
Telecopier: (512) 692-2788
www.kaplanlawatx.com
By:/s/Matthew Caponi
Austin Kaplan
State Bar No. 24072176
Matthew "Maff" Caponi
State Bar No. 24109154
Andrew Eckhous
State Bar No. 24127926
akaplan@kaplanlawatx.com
mcaponi@kaplanlawatx.com
aeckhous@kaplanlawatx.com
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ELI WINKELMAN,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-875-LY
§
THE CITY OF AUSTIN, TEXAS,
§
OFFICER QUINT SEBEK, individually,
§
AND OFFICER THOMAS
§
TUMINELLI, individually,
§
Defendants.
DEFENDANT CITY OF AUSTIN'S ANSWER
AND AFFIRMATIVE DEFENSES
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, City of Austin (sometimes referred to hereafter as COA or Austin Police
Department or APD or Defendant[s]), by and through counsel, files this Answer and Affirmative
Defenses to Plaintiff's First Amended Complaint (Doc. No. 2). Pursuant to Rules 8 and 12 of the
Federal Rules of Civil Procedure, Defendant respectfully shows the Court the following:
ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant responds to each of the
specific averments in Plaintiff's First Amended Complaint as set forth below. To the extent that
Defendant does not address a specific averment made by Plaintiff, Defendant expressly denies
that averment. 1
I. PARTIES
1.
Upon information and belief, admitted.
1
Paragraph numbers in Defendants' Answer correspond to the paragraphs in Plaintiff's First Amended Complaint.
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 2 of 24
2.
Defendant, City of Austin, has accepted service of process directed to Austin Police
Department.
3.
The City of Austin will be accepting service for the two named officers in the Amended
Petition upon receipt of the appropriate forms for process as contemplated by FRCP. The
allegations of this paragraph are referring to and asserting conclusions of law or fact without
stating a claim upon which relief can be granted, and do not require a response as stated. To the
extent any response is required, the Defendant denies any allegations asserting fault or liability.
4.
The City of Austin will be accepting service for the two named officers in the Amended
Petition upon receipt of the appropriate forms for process as contemplated by FRCP. The
allegations of this paragraph are referring to and asserting conclusions of law or fact without
stating a claim upon which relief can be granted, and do not require a response as stated. To the
extent any response is required, the Defendant denies any allegations asserting fault or liability.
II.
JURISDICTION
5.
Admitted.
6.
Defendant admits that this Court has personal jurisdiction over the Defendants.
Defendant denies the remaining allegations contained in Paragraph 6.
III.
VENUE
7.
Admitted.
IV.
FACTUAL ALLEGATIONS
8.
The allegations of subheading IV., and this paragraph 8., are referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and do not
require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 2 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 3 of 24
9.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
without stating a claim upon which relief can be granted, and do not require a response as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
10.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
11.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
12.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
13.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
14.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
15.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 3 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 4 of 24
16.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
17.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
18.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
19.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
20.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
21.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
22.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 4 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 5 of 24
23.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
24.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
25.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
26.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
27.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
28.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
29.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 5 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 6 of 24
30.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
31.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
32.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
33.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
34.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
35.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
36.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 6 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 7 of 24
37.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
38.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
39.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
40.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
41.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
42.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
43.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 7 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 8 of 24
44.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
45.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
46.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
47.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
48.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
49.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
50.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 8 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 9 of 24
51.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
52.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
53.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
54.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
55.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
56.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
57.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 9 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 10 of 24
58.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
59.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
60.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
61.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
62.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
63.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
64.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 10 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 11 of 24
65.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
66.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
67.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
68.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
69.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
70.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
71.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 11 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 12 of 24
72.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
73.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
74.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
75.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
76.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
77.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
78.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 12 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 13 of 24
79.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
80.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
81.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
82.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
83.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
84.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
85.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 13 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 14 of 24
86.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
87.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
88.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
V. CAUSE OF ACTION: EXCESSIVE FORCE IN VIOLATION OF 42 U.S.C. § 1983
89.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
90.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
91.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
92.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
Page 14 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 15 of 24
93.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
94.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendants deny any allegations asserting fault or liability.
95.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
96.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
97.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
98.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
99.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
Page 15 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 16 of 24
100. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
VI. CAUSE OF ACTION: MONELL LIABILITY, THE CITY OF AUSTIN
101. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
102. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
103. Denied in the context stated. The allegations of this paragraph are referring to
and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
104. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
105. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
106. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
Page 16 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 17 of 24
107. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
108. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
109. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
110. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
111. Denied in the context stated. The allegations of this paragraph are referring to
and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
112. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
113. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
Page 17 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 18 of 24
114. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
115. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
116. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
117. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
118. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
119. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
VII. CAUSE OF ACTION: INADEQUATE TRAINING, THE CITY OF AUSTIN
120. Denied in the context stated. The allegations of this paragraph are referring to
and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
Page 18 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 19 of 24
121. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
122. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
123. Denied in the context stated. The allegations of this paragraph are referring to
and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
124. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
125. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
126. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
VIII. DAMAGES
127.
Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
IX. COMPENSATORY DAMAGES
Page 19 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 20 of 24
128. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
X. PUNITIVE DAMAGES
129. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
XI. ATTORNEYS' FEES AND EXPERT FEES
130. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
131. Denied in the context stated. The allegations of this paragraph are referring to and
asserting conclusions of law or fact which do not require a response as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
XII. DEMAND FOR JURY TRIAL
132. The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
XIII. PRAYERS FOR RELIEF
133. Denied in the context stated. The allegations of this paragraph, including subparts a., b.
(i.,ii.,iii,iv.,.,vi.,vii.,viii.) are referring to and asserting conclusions of law or fact which do not
require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 20 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 21 of 24
AFFIRMATIVE DEFENSES & IMMUNITIES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as a
municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity since
its employees are entitled to qualified/official immunity for actions taken in the course and scope
of their employment, absent express waiver.
3.
As a political subdivision, Defendant City of Austin denies that it can be liable for
exemplary/punitive damages under 42 U.S.C. § 1983.
4.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of the case.
5.
Pleading further and in the alternative, Plaintiff's injuries and damages were caused in
whole or in part by the conduct of other persons or entities for whom these defendants have no
responsibility.
6.
To the extent applicable and subject to withdrawal, Defendants assert the affirmative
defense of comparative fault and that Plaintiff failed to mitigate damages, if any, and assert
failure to mitigate as both an affirmative defense and as a reduction in the damage amount, if
any, due Plaintiff.
7.
Defendants assert the affirmative defense of statute of limitations as to all claims outside
the applicable limitations period(s), both statutory and administrative, if any.
8.
Defendants deny deprivation of rights under color of statute, ordinance, custom, or
abuses of any rights, privileges, or immunities secured to the Plaintiff by the United States
Constitution, state law, or 42 U.S.C. § 1983, et seq.
Page 21 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 22 of 24
9.
Defendants hereby invoke applicable defenses based on the doctrine of Qualified
Immunity, Official Immunity, and any related defenses. Defendants discharged their obligations
and public duties in good faith, its actions were objectively reasonable in light of the law and the
information possessed at that time.
10.
To the extent applicable and subject to withdrawal, Defendants assert the incident in
question and the resulting harm to Plaintiff were caused or contributed to by Plaintiff's own
conduct.
11.
Defendants further plead that, in the unlikely event liability is found, such liability be
reduced by the percentage of the causation found to have resulted from the acts or omissions of
other persons.
12.
Defendants plead legal justification for the actions and conduct relating to this incident.
13.
To the extent Defendants did not address a specific averment made by Plaintiff,
Defendants expressly deny all such averments.
14.
Defendants reserve the right to assert additional affirmative defenses as may be
applicable throughout the development of the case, including immunity, estoppel, illegality,
laches, waiver, or any other matter which may constitute an avoidance or affirmative defense.
15.
Defendant Officers deny any deprivation under color of statute, ordinance, custom, or
abuses of any rights, privileges, or immunities secured to the Plaintiff by the United States
Constitution, state law, or 42 U.S.C. § 1983, et seq.
16.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show that
their actions were objectively reasonable in light of the law and the information possessed at that
time.
Page 22 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 23 of 24
17.
Pleading further, alternatively, and by way of affirmative defense, to the extent applicable
and subject to being withdrawn, Defendants would show that at the time and on the occasion in
question, Plaintiff failed to use any degree of care or caution that a person of ordinary prudence
would have used under the same or similar circumstances, and that such failure was a producing
cause or the sole proximate cause of the incident and alleged damages that arise therefrom.
Defendants invoke the comparative responsibility provisions of the Texas Civil Practice &
Remedies Code.
18.
Defendants assert that punitive damages are not available and would be contrary to the
protections of the United States Constitution by allowing a jury or fact finder standardless
discretion.
DEFENDANTS' PRAYER
Defendant prays that all relief requested by Plaintiff be denied, that the Court dismiss this
case with prejudice, and that the Court award Defendant costs and attorney's fees, and any
additional relief to which Defendant may be entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEY FOR DEFENDANT
Page 23 of 24
Case 1:22-cv-00875-LY Document 4 Filed 11/14/22 Page 24 of 24
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, this 14th day of November,
2022.
Via CM/ECF:
Matthew "Maff" Caponi
State Bar No. 24109154
imcaponi@kaplanlawatx.com
Austin Kaplan
State Bar No. 24072176
akaplan@kaplanlawatx.com
Andrew Eckhous
State Bar No. 24127926
aeckhous@kaplanlawatx.com
Kaplan Law Firm, PLLC
3901 S. Lamar Blvd. #260
Austin, Texas 78704
Telephone: (512) 553-9390
Facsimile: (512) 692-2788
ATTORNEYS FOR PLAINTIFF
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
Page 24 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ELI WINKELMAN,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-875-LY
§
THE CITY OF AUSTIN, TEXAS,
§
OFFICER QUINT SEBEK, individually,
§
AND OFFICER THOMAS
§
TUMINELLI, individually,
§
Defendants.
ANSWER AND AFFIRMATIVE DEFENSES
BY DEFENDANTS SEBEK AND TUMINELLI
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants, Officer Quint Sebek (now Corporal), individually, and Officer Thomas
Tuminelli, individually, (sometimes referred to hereafter as Defendants, Defendant Officers, or
Defendant Sebek or Defendant Tuminelli), by and through counsel, file this Answer and
Affirmative Defenses to Plaintiff's First Amended Complaint (Doc. No. 2). Pursuant to Rules 8
and 12 of the Federal Rules of Civil Procedure, Defendant respectfully shows the Court the
following:
ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant Officers respond to each of
the specific averments in Plaintiff's First Amended Complaint as set forth below. To the extent
that Defendant Officers do not address a specific averment made by Plaintiff, then Defendant
Officers expressly deny that averment.
1
1 Paragraph numbers in Defendants' Answer correspond to the paragraphs in Plaintiff's First Amended Complaint.
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 2 of 24
I. PARTIES
1.
Upon information and belief, admitted.
2.
Defendant, City of Austin, has accepted service of process directed to Austin Police
Department.
3.
Officer Quint Sebek (now Corporal), individually, has accepted service. Defendant Sebek
admits that he was a police officer employed by the City of Austin on August 29, 2020. The
allegations of this paragraph are referring to and asserting conclusions of law or fact without
stating a claim upon which relief can be granted, and do not require a response as stated. To the
extent any response is required, the Defendant Officer denies any allegations asserting fault or
liability.
4.
Officer Thomas Tuminelli, individually, has accepted service. Defendant Officer
Tuminelli admits that he was a police officer employed by the City of Austin on August 29,
2020. The allegations of this paragraph are referring to and asserting conclusions of law or fact
without stating a claim upon which relief can be granted, and do not require a response as stated.
To the extent any response is required, the Defendant Officer Tuminelli denies any allegations
asserting fault or liability.
II.
JURISDICTION
5.
Admitted.
6.
Defendants admit that this Court has personal jurisdiction over the Defendants.
Defendants deny the remaining allegations contained in Paragraph 6.
III.
VENUE
7.
Admitted.
Page 2 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 3 of 24
IV.
FACTUAL ALLEGATIONS
8.
The allegations of subheading IV., and this paragraph 8., are referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and do not
require a response as stated. To the extent any response is required, the Defendant Officers deny
any allegations asserting fault or liability.
9.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
without stating a claim upon which relief can be granted, and do not require a response as stated.
To the extent any response is required, the Defendant Officers deny any allegations asserting fault
or liability.
10.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
Officers deny any allegations asserting fault or liability.
11.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
Officers deny any allegations asserting fault or liability.
12.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
13.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 3 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 4 of 24
14.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
15.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
16.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
17.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
18.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
19.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
20.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 4 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 5 of 24
21.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
22.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
23.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
24.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
25.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
26.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
27.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 5 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 6 of 24
28.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
29.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
30.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
31.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
32.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
33.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
34.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 6 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 7 of 24
35.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
36.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
37.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
38.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
39.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
40.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
41.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 7 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 8 of 24
42.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
43.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
44.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
45.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
46.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
47.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
48.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
Page 8 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 9 of 24
49.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
50.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
51.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
52.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
53.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
54.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
55.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 9 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 10 of 24
56.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
57.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
58.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
59.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
60.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
61.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
62.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 10 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 11 of 24
63.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
64.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
65.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
66.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
67.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
68.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
69.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 11 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 12 of 24
70.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
71.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
72.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
73.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
74.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
75.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
76.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 12 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 13 of 24
77.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
78.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
79.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
80.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
81.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
82.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
83.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 13 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 14 of 24
84.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
85.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
86.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
87.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
88.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
V. CAUSE OF ACTION: EXCESSIVE FORCE IN VIOLATION OF 42 U.S.C. § 1983
89.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
90.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
Page 14 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 15 of 24
91.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
92.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
93.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
94.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
95.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
96.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
97.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
Page 15 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 16 of 24
98.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
99.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
100. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
VI. CAUSE OF ACTION: MONELL LIABILITY, THE CITY OF AUSTIN
101.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
102. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
103.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
104. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
Page 16 of 24
Case 1:22-cv-00875-LY Document 13 Filed 02/17/23 Page 17 of 24
105.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
106. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
107. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
108. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
109.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
110. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
111.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
Page 17 of 24
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112.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
113. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
114. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
115. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
116. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
117. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
118.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
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119.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
VII. CAUSE OF ACTION: INADEQUATE TRAINING, THE CITY OF AUSTIN
120.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
121.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
122. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
123. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
124.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
125.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
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126.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
VIII. DAMAGES
127. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
IX. COMPENSATORY DAMAGES
128. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
X. PUNITIVE DAMAGES
129.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendant Officers deny any allegations asserting fault or liability.
XI. ATTORNEYS' FEES AND EXPERT FEES
130.
Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
131. Denied in the context stated. The allegations of this paragraph are referring to and asserting
conclusions of law or fact which do not require a response as stated. To the extent any response is
required, the Defendants deny any allegations asserting fault or liability.
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XII. DEMAND FOR JURY TRIAL
132.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
which do not require a response as stated. To the extent any response is required, the Defendants
deny any allegations asserting fault or liability.
XIII. PRAYERS FOR RELIEF
133. Denied in the context stated. The allegations of this paragraph, including subparts a., b.
(i.,ii.,iii,iv.,V.,vi.,vii.,viii.) are referring to and asserting conclusions of law or fact which do not
require a response as stated. To the extent any response is required, the Defendants deny any
allegations asserting fault or liability.
AFFIRMATIVE DEFENSES & IMMUNITIES
1.
Defendant Officers deny any deprivation under color of statute, ordinance, custom, or
abuses of any rights, privileges, or immunities secured to the Plaintiff by the United States
Constitution, state law, or 42 U.S.C. § 1983, et seq.
2.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show that
their actions were objectively reasonable in light of the law and the information possessed at that
time.
3.
The incident in question and the resulting harm to Plaintiff were caused or contributed to
by Plaintiff's own conduct. Pleading further and in the alternative, Plaintiff's injuries and
damages were caused in whole or in part by the conduct of other persons or entities who are not
currently parties to this lawsuit. Pleading further, alternatively, and by way of affirmative
defense, to the extent applicable and subject to being withdrawn, Defendant Officers would show
that at the time and on the occasion in question, Plaintiff failed to use any degree of care or
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caution that a person of ordinary prudence would have used under the same or similar
circumstances, and that such failure was a producing cause or the sole proximate cause of the
incident and alleged damages that arise therefrom.
4.
Defendant Officers invoke the comparative responsibility provisions of the Texas Civil
Practice & Remedies Code.
5.
Defendants further plead that, in the unlikely event they are found to be liable, such
liability be reduced by the percentage of the causation found to have resulted from the acts or
omissions of other persons.
6.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
7.
Defendants assert the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies Code, and the due process clause of the United States Constitution.
8.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
9.
To the extent Defendants did not address a specific averment made by Plaintiff in his
Amended Complaint, Defendants expressly deny all such averments.
10.
Defendants assert the affirmative defense that Plaintiff failed to mitigate damages, if any,
and assert this failure to mitigate as both an affirmative defense and as a reduction in the damage
amount, if any, due Plaintiff.
11.
Defendants assert the affirmative defense of statute of limitations as to all claims outside
the applicable limitations period(s), both statutory and administrative, if any.
12.
To the extent Defendants did not address a specific averment made by Plaintiff in the
Complaint, Defendants expressly deny all such averments.
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13.
To the extent applicable and subject to withdrawal, Defendants assert the affirmative
defense of comparative fault and that Plaintiff failed to mitigate damages, if any, and assert
failure to mitigate as both an affirmative defense and as a reduction in the damage amount, if
any, due Plaintiff.
14.
Defendants reserve the right to assert additional affirmative defenses as may be
applicable throughout the development of the case, including immunity, estoppel, illegality,
laches, waiver, or any other matter which may constitute an avoidance or affirmative defense.
15.
Defendants assert that punitive damages are not available and would be contrary to the
protections of the United States Constitution by allowing a jury or fact finder standardless
discretion
DEFENDANTS' PRAYER
Defendant Officers pray that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendant Officers costs and attorney's
fees, and any additional relief to which each Defendant Officer may be entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEY FOR DEFENDANT OFFICERS
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CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys of
record, in compliance with the Federal Rules of Civil Procedure, this 17th day of February, 2023.
Via CM/ECF:
Matthew "Maff" Caponi
State Bar No. 24109154
mcaponi@kaplanlawatx.com
Austin Kaplan
State Bar No. 24072176
akaplan@kaplanlawatx.com
Andrew Eckhous
State Bar No. 24127926
aeckhous@kaplanlawatx.com
Kaplan Law Firm, PLLC
3901 S. Lamar Blvd. #260
Austin, Texas 78704
Telephone: (512) 553-9390
Facsimile: (512) 692-2788
ATTORNEYS FOR PLAINTIFF
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
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