Ondo-Simcox US District Court Complaint

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

EASTERN DIVISION STEVEN ONDO c/o David B. Malik 8437 Mayfield Road Suite 101 Chesterland, Ohio 44026

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CASE NO.

and

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JUDGE

JONATHAN SIMCOX c/o David B. Malik 8437 Mayfield Road Suite 101 Chesterland, Ohio 44026

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COMPLAINT AND JURY DEMAND

vs. ) THE CITY OF CLEVELAND 601 Lakeside Avenue Cleveland, Ohio 44113 and

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OFFICER MATTHEW MACLAREN Cleveland Police Department Fourth District 9333 Kinsman Road Cleveland, Ohio 44104 and OFFICER DOUGLAS A. NUTI Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and OFFICER ROBERTO ORTIZ Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and

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Case: 1:12-cv-00122-PAG Doc #: 1 Filed: 01/18/12 1 of 22. PageID #: 1

LIEUTENANT D. DVORAK Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and OFFICER CLIFFORD KIME Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and DETECTIVE DAVID POCHATEK Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and SERGEANT MITCHELL Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111 and JOHN AND JANE DOES #1 – 20 Cleveland Police Department First District 3895 West 130th Street Cleveland, Ohio 44111

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) Defendants. )

I. INTRODUCTION

1. This case challenges the excessive force and undisguised prejudice inflicted upon two gay

men from Cleveland, Ohio, Steven Ondo and Jonathan Simcox by officers and agents of the


Cleveland Police Department and the City of Cleveland.

2. On April 2, 2011, Steven Ondo and Jonathan Simcox had the misfortune of unintentionally

bothering a neighbor who was an officer of the Cleveland Police Department. The neighbor,

Matthew Maclaren, responded by physically assaulting the men. Matthew Maclaren also

called for Cleveland Police to arrest Steven Ondo and Jonathan Simcox. As a result,

multiple officers of the Cleveland Police Department arrived to unnecessarily arrest Steven

and Jonathan.

3. Steven and Jonathan were physically assaulted on two separate occasions by officers of the

Cleveland Police Department. The second assault and arrest occurred approximately one

week after the initial April 2, 2011 assault and arrest. The second assault and arrest occurred

pursuant to a warrant that was executed by the Cleveland Police SWAT and/or Warrant Unit

at Steven and Jonathan’s home on East 108th Street in Cleveland, Ohio. The warrant,

however, was obtained via false and perjured statements from one or more members of the

Cleveland Police Department.

4. During the second arrest, Steven and Jonathan were also publicly humiliated by officers of

the Cleveland Police Department. Officers, including one or more of the Defendants,

repeatedly referred to Steven and Jonathan as "faggots." These police officers made

numerous additional derogatory statements to Steven and Jonathan about their sexual

orientation. The Defendants even stated “faggots don’t get to wear pants to jail” as Steven

and Jonathan were in fact transported to jail without their pants.

5. Cleveland Police Officers, including one or more of the Defendants, deliberately forced

Steven and Jonathan to wear only their underwear during their forced removal from their

home, seizure, and subsequent transport in the Cleveland police van that took them to jail.

Members of the Cleveland Police continued to refuse Steven and Jonathan their pants during

transport and while they were prisoners in jail. Despite repeatedly pleading for pants to cover


themselves, the jail staff finally relented and provided each a jumpsuit after more than a day

had passed.

6. Confident that they had done nothing wrong, Steven and Jonathan each refused any plea

agreement from the Cuyahoga County Prosecutor’s office. The Prosecutors were aware of

the derogatory and prejudicial conduct of the officers during their arrest but turned a blind

eye to the officers’ conduct. The case proceeded to trial and Judge Stuart Friedman found

Steven and Jonathan Not Guilty on each of the contrived charges brought against them.

7. Steven Ondo and Jonathan Simcox bring this suit with the hope that it will deter the

Cleveland Police and Defendants from treating any citizen unreasonably and with prejudice,

hatred and disdain.

8. In 2014 Cleveland will host the Gay Games, an international athletic competition similar to

the Olympics. Steven and Jonathan intend and hope that this lawsuit, in part, deters further

prejudice and abuse by members of the Cleveland Police department towards members of

the Lesbian, Gay, Bisexual and/or Transgendered – LGBT for short – community.

II. JURISDICTION

9. Jurisdiction over claims brought under the Civil Rights Act of 1871 is conferred on this

Court by 28 U.S.C. §§ 1331, 1343 (3) and (4). Jurisdiction over the state law claims is

conferred by 28 U.S.C. §1367. An affidavit pursuant to Ohio Rule Civ. Proc. 10(D) (2) is

attached in support of the medical claims. Venue is proper in this Division.

III. PARTIES

10. Steven Ondo was a resident of the City of Cleveland and Cuyahoga County, Ohio during all

times relevant to this action. He brings this action on his own behalf for damages resulting

from the violation of rights secured by the United States Constitution and the laws of the

State of Ohio.

11. Jonathan Simcox was a resident of the City of Cleveland and Cuyahoga County, Ohio during


all times relevant to this action. He brings this action on his own behalf for damages

resulting from the violation of rights secured by the United States Constitution and the laws

of the State of Ohio.

12. The City of Cleveland ("City") is a municipal government responsible for the funding and

management of the Cleveland Police Department and its agent/employee police officers. It is

a state actor and a “person” for purposes of 42 U.S.C §1983.

13. Defendant Officer Matthew MaClaren was at all times relevant to this action an employee of

the Cleveland Police Department. Defendant MaClaren is sued in his individual and official

capacities. Defendant MaClaren is a person under 42 U.S.C. §1983 and at all times relevant

to this case acted under color of state law.

14. Defendant Officer Douglas A. Nuti was at all times relevant to this action an employee of

the Cleveland Police Department. Defendant Nuti is sued in his individual and official

capacities. Defendant Nuti is a person under 42 U.S.C. §1983 and at all times relevant to this

case acted under color of state law.

15. Defendant Officer Roberto Ortiz was at all times relevant to this action an employee of the

Cleveland Police Department. Defendant Ortiz is sued in his individual and official

capacities. Defendant Ortiz is a person under 42 U.S.C. §1983 and at all times relevant to

this case acted under color of state law.

16. Defendant Lieutenant D. Dvorak was at all times relevant to this action an employee of the

Cleveland Police Department. Defendant Dvorak is sued in his individual and official

capacities. Defendant Dvorak is a person under 42 U.S.C. §1983 and at all times relevant to


17. Defendant Officer Clifford Kime was at all times relevant to this action an employee of the

Cleveland Police Department. Defendant Kime is sued in his individual and official

capacities. Defendant Kime is a person under 42 U.S.C. §1983 and at all times relevant to



18. Defendant Officer David Pochatek was at all times relevant to this action an employee of the

Cleveland Police Department. Defendant Pochatek is sued in his individual and official

capacities. Defendant Pochatek is a person under 42 U.S.C. §1983 and at all times relevant

to this case acted under color of state law.

19. Defendant John and Jane Does #1 – 20 are employees, agents and/or contractors of

Defendant Cleveland Police Department and/or City of Cleveland who were involved in the

incident between Cleveland Police and the Plaintiffs on April 2, 2011, or who were involved

in the incident between Cleveland Police and the Plaintiffs on April 9, 2011, or involved

with the actions and inactions taken by Defendant Cleveland Police Department in response

to the above incidents. Defendants Doe are also those employees, agents and/or contractors

who work in the Cuyahoga County Corrections Center and who interacted with Jonathan

Simcox and Steven Ondo while they were prisoners in the jail. Defendants Doe are sued

their individual and official capacities. Defendants Doe are each a person under 42 U.S.C.

§1983 and at all times relevant to this case acted under color of state law.

IV. FACTS

A. INTRODUCTION

20. On April 2, 2011 Steven Ondo ("Steven"), Jonathan Simcox ("Jonathan") and their friend

Brittany Komes ("Brittany") went to Johnny Malloy's, a restaurant close to Steven and

Jonathan’s apartment in Cleveland, Ohio, to enjoy some karaoke after work.

21. At the end of the night the trio walked home from Johnny Malloy’s. During the walk, Steven

and Jonathan began to argue about a text message that Jonathan had sent to a friend.

22. The argument made Steven upset. He decided to leave Jonathan and Brittany and went to sit

on his landlord's back porch so he could think about what had happened. Steven and

Jonathan’s landlord’s porch was always within hearing distance of Jonathan and Brittany


that night because the landlord lived only a few doors down from their apartment.

23. Jonathan and Brittany continued towards Steven and Jonathan's apartment without Steven.

But upon reaching the front door, they realized that Steven had the key to the apartment and

they were locked out.

24. Jonathan did not know where Steven went after the argument. But when Steven left, they

were already very close to home, so Jonathan reasoned that Steven must be nearby. Jonathan

began calling out for Steven asking him to come home, telling Steven that he and Brittany

were locked out and that Steven had they key.

B. STEVEN AND JONATHAN’S FIRST INCIDENT WITH THE CLEVELAND POLICE DEPARTMENT

25. Very suddenly Jonathan saw someone running at him. Jonathan assumed he was a neighbor.

Only later did Jonathan learn that this man was Cleveland Police Officer Matthew MacLaren

("MacLaren").

26. MacLaren did not identify himself as a police officer that night. Jonathan had never met him

before, and he was immediately intimidated because MacLaren was over six feet tall, and

weighed approximately two hundred and twenty pounds. Jonathan was slimly built and

weighed only one hundred and thirty pounds.

27. MacLaren was immediately aggressive, offensive and hateful towards Jonathan. MacLaren

yelled, "shut up you faggot," and "this is my block." This sudden and aggressive

confrontation surprised and intimidated Jonathan.

28. Although Jonathan was frightened, he told MacLaren that this was his property and asked

him to leave. MacLaren refused.

29. Jonathan did not want the situation to escalate further so he attempted to retreat. Brittany had

already retreated to the front porch, and watched the confrontation in horror. Jonathan

attempted to join Brittany and hoped MacLaren would not follow him, but MacLaren


blocked Jonathan's path. There was no escape.

30. In a desperate attempt to avoid him, Jonathan tried to push MacLaren aside. MacLaren

responded by immediately punching Jonathan.

31. MacLaren then grabbed Jonathan and dragged him across the driveway. Jonathan attempted

to protect himself, but this only cause him to scrape the palm of his hand on the cement of

the driveway.

32. Once MacLaren got Jonathan to the grass, he immediately pinned him to the ground.

Jonathan tried to free himself, but each attempt failed because MacLaren used his size

advantage to violently force Jonathan back to the ground.

33. Jonathan realized that he could not escape MacLaren on his own, so he began to call out for

help. Jonathan yelled for Steven.

34. As soon as Steven heard Jonathan’s cries for help, he immediately knew from their tone that

something was wrong.

35. Steven instantly ran towards Jonathan and MacLaren. He had his arms outstretched and

attempted to separate Jonathan and MacLaren.

36. Steven is also of slim build and weighed only one hundred and forty pounds. He was no

match for MacLaren.

37. MacLaren was able to maneuver and immediately pin Steven to the ground, where he held

him with a knee on Steven's face.

38. Brittany, seeing that both of her friends were pinned to the ground by MacLaren, came

forward in an attempt to help them. As she approached MacLaren he grabbed her arm and

pinned it behind her back. At this point MaClaren had disabled Jonathan, Steven and

Brittany.

39. Hearing all the commotion, Steven and Jonathan's neighbors, Ashley and Andrew, came

outside. Andrew is a large man. Upon seeing how MacLaren was treating Steven and


Jonathan, Andrew yelled to MacLaren, "Get off of them! Those are little guys! Leave them

alone!"

40. This momentary distraction provided an opportunity for Jonathan, Steven and Brittany to

free themselves from MacLaren's grasp. They immediately ran for the front door. They told

MacLaren that they were going to call the police. MacLaren then told them to go ahead; and

for the first time said that he was a police officer. This was the first and only time that

MacLaren referenced any affiliation he had with the police.

41. Once inside their apartment, Steven and Jonathan decided to call the police to report the

incident. Because they thought they were out of danger, they wanted to call the non-

emergency number for the Cleveland Police Department. Unfortunately, no one knew the

number. Steven, however, knew the non-emergency number for the Fairport Harbor Police.

Jonathan called the Fairport Police and got the non-emergency number for the Cleveland

Police Department.

42. Unbeknownst to Steven and Jonathan, at or about that very same time, MacLaren stood on

their front lawn and called the Cleveland Police Department. MacLaren made no mention of

his brutal, physical confrontation with Steven and Jonathan in his call. Instead, MacLaren

painted a strange and outlandish picture of the events that had just unfolded.

43. MacLaren asserted that he had come out of his home to confront Jonathan, only to be

assaulted by Steven and Jonathan, who then ran into their apartment.

44. When the dispatcher asked MacLaren where he was, MacLaren admitted that he remained

standing on the sidewalk in front of the apartment where the people who he claimed had

assaulted him lived.

45. MacLaren also misrepresented information, and deliberately told the dispatcher that his

would-be assailants were still “trying to come out here and fight me."

46. Still inside their apartment, Jonathan was calling the Cleveland Police Department along


with Steven and Brittany. Suddenly, there was a knock on the door and a yell of "Police!"

47. Believing that the police had arrived in response to their call about being assaulted, Steven

and Jonathan immediately opened the door to invite the police officers into their apartment.

48. When they opened the door, Jonathan was covered in blood from the cut on his hand and

Steven had a black eye. Neither was wearing shoes. The Cleveland Police did not ask any

questions about what had transpired. The officers simply took Steven and Jonathan by their

arms, removed them from their apartment and placed them into two separate police cars

waiting outside.

49. Surprisingly, the scene outside of Steven and Jonathan's apartment was light-hearted. As

Steven and Jonathan were physically injured and sitting scared in the back of police cars,

MacLaren stood in the driveway, his arm around his girlfriend, with a circle of Cleveland

Police officers around them. The group casually laughed and smiled.

50. Brittany recognized the injustice unreasonably levied upon her friends. She approached a

police officer intending to give an oral statement about what had really happened. But while

Brittany was in the middle of giving her statement the officer interrupted her. The officer

told her that what she said could also get her arrested. This chilled Brittany and intimidated

her. The Cleveland Police Officer’s threat caused Brittany to decide against making a

statement to the Cleveland Police that night.

51. Eventually the officers removed Steven and Jonathan from the police cars, put them in

handcuffs, and told that they were being arrested.

52. Steven and Jonathan were taken to jail.

53. Steven and Jonathan were booked and fingerprinted at jail, but their “mug shots” were not

taken. While both Steven and Jonathan were jailed they demanded pictures of their injuries

to be taken, but the corrections officers ignored their requests.

54. Despite the fact that corrections officers refused to document Steven and Jonathan's injuries,


the scrape on Jonathan's hand was so severe that the jail nurse had to administer a tetanus

shot.

55. Steven and Jonathan were both charged with aggravated disorderly conduct and obstructing

official business for what happened on April 2, 2011. They spent three days in jail for these

alleged offenses.

56. Steven and Jonathan were released on Monday.

57. Every charge against Steven and Jonathan was dropped, and they were told they were free to

go. Steven and Jonathan then walked home from the Cuyahoga County Corrections Center

without shoes, believing that the whole horrible ordeal was over.

C. STEVEN AND JONATHAN’S SECOND INCIDENT WITH THE CLEVELAND POLICE DEPARTMENT

58. At 5:30 am on Friday April 9, 2011, Jonathan and Steven, along with Jonathan’s brother

Jesse Simcox ("Jesse"), were asleep in Steven and Jonathan's apartment.

59. A sudden knock on the door to the apartment building jolted Steven awake and its insistence

roused him out of bed.

60. Steven got out of bed wearing only his underwear and a t-shirt. He exited his third-floor

apartment and went to open the building’s front door on the first floor.

61. As Steven opened the door six or seven members of the SWAT/WARRANT team came

rushing in. The officers were wearing helmets and wielding shields. Steven identified

himself but it didn’t’ matter. Steven was punched in the face and pushed up the stairs into

and empty apartment on the second floor. He was told to face the wall and put his against it.

62. Still in bed, Jonathan heard shouts and the noise of people shuffling below. Suddenly

confused, Jonathan got out of bed and proceeded out of his apartment. He too was wearing

only a t-shirt and his underwear.

63. As Jonathan entered the stairwell and saw the SWAT and/or WARRANT team members he


immediately put his hands up in a gesture of submission.

64. Jonathan exclaimed, “What's going on?”

65. The officers told him not to ask what's going on, and to “get down here.” Jonathan complied.

66. As Jonathan approached the SWAT and/or WARRANT team members they began to shout,

"Are you Jason?" Jonathan franticly replied that he was not Jason, and that he did not know

who Jason was. The leader of the SWAT and/or WARRANT team punched Jonathan twice

in the face for his answer to the question.

67. The SWAT and/or WARRANT team then forced Jonathan into the empty apartment on the

second floor where Steven was already pushed against the wall.

68. The SWAT and/or WARRANT team members continued so ask Jonathan if he was "Jason."

69. The SWAT and/or WARRANT team members asked Steven who "Jason" was.

70. Frightened and only concerned with stopping the brutal assault and interrogation these

unidentified SWAT and/or WARRANT team members were putting them through, Jonathan

desperately told the truth: that his name was Jonathan James Simcox. He also provided his

birth date and social security number. The SWAT/WARRANT team didn’t care, they

continued to demand if he was “Jason.”

71. Eventually the SWAT and/or WARRANT team members decided that, "these are the guys."

Steven and Jonathan were seized and dragged out of their apartment.

72. The SWAT and/or WARRANT team told Jonathan and Steven that they were being arrested

and placed them in handcuffs.

73. Jonathan then called for his brother, Jesse. When Jesse arrived the SWAT and/or

WARRANT team members restrained Jesse as well. Jesse asked why Steven and Jonathan

were being arrested. The SWAT and/or WARRANT team told Jesse that Steven and

Jonathan were being arrested for assaulting an officer. Steven and Jonathan had no idea who

the officer that they had allegedly assaulted was. It had never occurred to them that a week


before when they were assaulted MacLaren that he was a police officer. Moreover, they were

confused because they were the ones assaulted by MacLaren.

74. Jesse, seeing that Steven and Jonathan were only in their underwear and t-shirts, asked the

SWAT and/or WARRANT team members if he could get Steven and Jonathan pants and

shoes before they were taken to jail. The SWAT and/or WARRANT team members denied

the request and replied, "faggots don't get to wear pants in jail."

75. The SWAT and/or WARRANT team members did permit Jesse to get shoes for Steven and

Jonathan. In fact, they even permitted Jesse to make two trips upstairs to retrieve shoes

because the first pairs Jesse retrieved had laces, and laced shoes are not permitted in jail.

76. Dressed in just t-shirts, underwear and shoes, Steven and Jonathan were escorted out of their

building and onto the front lawn. Although the police van was parked in the street at the end

of their driveway, Steven and Jonathan were forced to stand in their front lawn in their

underwear for five to ten minutes. During this time, the SWAT and/or WARRANT team

publicly ridiculed them.

77. Steven and Jonathan felt that the sole purpose of having them stand in their front lawn was to

be taunted and humiliated by the SWAT and/or WARRANT team members.

78. Most of the taunts by the Cleveland Police focused on the fact that Steven and Jonathan are

gay. During that time, the SWAT and/or WARRANT team members voiced their disgust for

Steven and Jonathan. They loudly declared, "they're all gay," and "there's three gay guys and

only one bed." “They’re all sleeping together!” They even commented, "the brother's gay

too!"

79. For Steven and Jonathan this was a humiliating and degrading experience. Neither had

experienced such hate and prejudice since high school.

80. Steven and Jonathan were the first stop on the SWAT and/or WARRANT teams sweep that

day.


81. The second individual that the SWAT and/or WARRANT team arrested hat day entered the

van, looked at Steven and Jonathan sitting in their underwear and laughed. He remarked,

"you guys must have done something really bad because I got a phone call telling me that

they were coming." That individual was also permitted to change out of him pajamas. The

Cleveland Police Department and the SWAT and/or WARRANT did neither for Steven and

Jonathan.

D. STEVEN AND JONATHAN ARE HELD AS PRISONERS IN THE CUYAHOGA COUNTY JAIL. 82. Once they arrived at jail, both Steven and Jonathan spent what felt like an eternity wearing

only underwear and a t-shirt. They were dressed that way for at least a day. They sat in a

holding cell with other prisoners who made them feel threatened because they were the only

ones in just their underwear. The humiliation and degradation they felt was unbearable.

83. They were fingerprinted in their underwear. Their mug shots were taken while they were

wearing only underwear. Steven and Jonathan each repeatedly requested pants because of the

humiliation, fear, and vulnerability it caused them. While imprisoned without pants, Steven

and Jonathan came into contact with numerous other individuals, including dangerous

criminals. For at least one whole day, Steven and Jonathan’s repeated requests for pants were

denied by the employees and staff members of the Cuyahoga County Correctional Center.

84. Steven and Jonathan were the only prisoners in the jail who were not allowed to wear pants.

85. Mercifully a female corrections officer finally gave Steven and Jonathan pants after the

before they were transferred to what jail staff referred to as the “bull pit.”

86. From the time of their arrest on April 9, 2011 to April 11, 2011, Steven and Jonathan

remained in jail.

87. When Steven and Jonathan were released on April 11, 2011, they both again walked home

from the jail. This time, they had to walk home without wearing any pants. Their humiliation


continued.

88. Upon posting bail and being released from jail, Steven and Jonathan felt some relief, but the

ordeal was far from over. Steven and Jonathan still had to stand trial and face possible

incarceration for what they were charged with: the alleged assault of Officer MacLaren.

89. After a full trial lasting several days Steven and Jonathan were found not guilty of assaulting

a police officer and all other charges brought against them.

90. All Defendants proximately caused physical injuries to Jonathan Simcox and Steven Ondo.

Furthermore, Defendants’ actions resulted in physical injuries, humiliation, embarrassment

and emotional distress to Steven and Jonathan. Defendants’ actions proximately caused these

injuries to Steven and Jonathan.

91. Defendants caused Steven and Jonathan serious emotional distress, including

embarrassment, humiliation, fear, anxiety and pain and sadness.

92. Defendants caused Steven and Jonathan to incur significant medical bills and they will incur

additional medical bills indefinitely in the future.

V. FIRST CAUSE OF ACTION - 42 U.S.C. §1983 – ARREST WITHOUT PROBABLE

CAUSE

93. The Defendants have, under color of law, deprived the Plaintiffs of clearly established rights,

privileges and immunities secured by the Fourth and Fourteenth Amendments to the United

States Constitution of which a reasonable person would have known. These rights include,

but are not limited to, the seizure, arrest and incarceration of Jonathan Simcox and Steven

Ondo, on two separate occasions, without probable cause.

94. On April 2, 2011, the Defendants arrested and incarcerated Steven and Jonathan for the

alleged crimes of aggravated disorderly conduct and obstructing official business. Jonathan

and Steven were detained for two days for charges that were dropped.

95. One week later, on April 9, 2011, Jonathan and Steven were arrested again. This time they


were charged with felonious assault on a police officer, ostensibly resulting from the brutal

assault in which they were victims. There was no probable cause for this arrest and these

charges. A jury found both Steven and Jonathan Not Guilty of any offense.

96. The Defendants’ arrests of Jonathan and Steven without probable cause violated clearly

established rights secured by the United States Constitution, of which a reasonable officer

would have known.

97. The Cleveland Police Department’s custom, policy and/or practice of effectuating sweeps

and arrests without probable cause to do so was moving force behind the constitutional

violations suffered by Steven and Jonathan at the hands of the Defendants.

98. By failing to properly investigate the unconstitutional acts of its police officers identified in

this Claim, the City of Cleveland and its policy makers ratified the acts of the Defendants

and are liable for the Defendants §1983violations.

VI. SECOND CAUSE OF ACTION - 42 U.S.C. §1983 – USE OF EXCESSIVE AND

UNREASONABLE FORCE

99. The Defendants have, under color of law, deprived the Plaintiffs of clearly established rights,

privileges and immunities secured by the Fourth and Fourteenth Amendments to the United

States Constitution of which a reasonable person would have known. These rights include,

but are not limited to, the use of excessive force against Jonathan Simcox and Steven Ondo.

100. Each Defendant used unreasonable and excessive force during the arrests of Steven

and Jonathan. The force used during the arrests of Steven and Jonathan also shocks the

conscience.

101. The Defendants use of force during the arrests of Steven and Jonathan was negligent,

reckless, willful and wanton. The Defendants acted intentionally and maliciously and with

bad faith.

102. The Defendants use of force in each of the arrests of Jonathan and Steven violated


clearly established rights secured by the United States Constitution of which a reasonable

officer would have known.

103. The Cleveland Police Department’s custom, policy habits, practice and/or procedures,

including but not limited to those effectuating sweeps and arrests were a moving force

behind the constitutional violations suffered by Steven and Jonathan at the hands of the

Defendants.

104. By failing to properly investigate the unconstitutional acts of its police officers

identified in this Claim, the City of Cleveland and its policy makers ratified the acts of the

Defendants and are liable for the Defendants §1983violations.

VII. THIRD CAUSE OF ACTION - 42 U.S.C. §1983 – VIOLATION OF RIGHT TO PRIVACY

AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT

105. The Defendants have, under color of law, deprived the Plaintiffs of clearly

established rights, privileges and immunities secured by the Fourth and Fourteenth

Amendments to the United States Constitution of which a reasonable person would have

known. These rights include, but are not limited to, the right to privacy and the right to be

free from cruel and unusual punishment.

106. The Defendants forced Steven and Jonathan to wear only underwear while they

loudly ridiculed them about their sexual orientation on their front lawn within earshot and

eyesight of neighbors. The Defendants slurs included vicious use of the word “faggot” and

the Defendants paused their work for nearly ten minutes so that they could publicly

humiliate Steven and Jonathan on their front lawn.

107. The Defendants forced Steven and Jonathan to wear only their underwear for the

entire time they drove around Cleveland and arrested additional individuals who were also

held in the “paddywagon” with Steven and Jonathan.

108. The Defendants forced Steven and Jonathan to wear only their underwear while they


were detained in the jail after their arrest.

109. Steven and Jonathan were forced to wear revealing clothing as punishment both while

in the “paddywagon” and while in the jail.

110. While imprisoned in the jail Steven and Jonathan also endured taunts, teasing and

cruelty from the jail staff.

111. Defendants were aware that individuals have a right to privacy and a right to be free

from cruel and unusual punishment. Both of these rights were clearly established at the time

that Steven and Jonathan suffered them.




VIII. FOURTH CAUSE OF ACTION - 42 U.S.C. §1983 – VIOLATION OF EQUAL

PROTECTION

113. The Defendants have, under color of law, deprived the Plaintiffs of the equal

protection of the law secured by the Fourteenth Amendment to the United States

Constitution.

114. The Defendants have, under color of law, deprived the Plaintiffs of their fundamental

right to privacy in violation of the Fourth Amendment (which was applied to the state

pursuant to the Fourteenth Amendment) to the United States Constitution and in doing so,

violated the equal protection clause of the Fourteenth Amendment to the United States

Constitution.

115. The Defendants have, under color of law, deprived the Plaintiffs of their fundamental

right to be free from cruel and unusual punishment in violation of the Eighth Amendment

(and applied to the states and pre-trial detainees pursuant to the Fourteenth Amendment) of

the United States Constitution, and in doing so, violated the equal protection clause of the


Fourteenth Amendment to the United States Constitution.

116. Defendants treated Steven and Jonathan differently because of their perceived and/or

actual sexual preference. The Defendants treated Steven and Jonathan different because they

were gay. The differences in the Defendants’ treatment of Steven and Jonathan is clearly

demonstrated in their refusal to allow Steven and Jonathan to wear pants because “faggots

don’t get to wear pants in jail.” The Defendants stated that they treated Steven and Jonathan

different than other private citizens because of their sexual preference.

117. The SWAT AND/OR WARRANT team’s raid was also carried out with increased

violence and excessive force against Steven and Jonathan because they were gay. Defendants

chose to execute an unnecessary raid, utilize excessive force, and then ridiculed the Plaintiffs

because of their sexual orientation. They explicitly called them derogatory names, intended

to humiliate them in front of their friends and neighbors, and then forced them to jail in only

their underwear. Alone, each of these acts by the Defendants was unreasonable and in

violation of the Fourth Amendment to the United States Constitution.

118. The Defendants did not use the same excessive force or commit the same privacy

violations or engage in the same cruel and unusual punishment with any of the other

individuals they arrested that morning during their sweep.

119. Defendants’ acts violated Steven and Jonathan’s constitutional rights under the

Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Defendants’

acts were motivated by their expressed hatred and disgust with homosexuals. Because the

acts that injured Steven and Jonathan violated their fundamental rights and were committed

against them because of their sexual preference, the Defendants are liable for failing to

provide Steven and Jonathan equal protection under the law pursuant to 14th Amendment to

the United States Constitution.





IX. FIFTH CAUSE OF ACTION – ASSAULT AND BATTERY

121. Defendant Officers intentionally and maliciously applied and threatened to apply

unlawful and unnecessary force against Jonathan Simcox and Steven Ondo.

X. SIXTH CAUSE OF ACTION –INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS

122. Defendant officers intentionally inflicted severe emotional distress on Jonathan

Simcox and Steven Ondo.

123. Defendant Officers conduct toward Steven and Jonathan was so extreme and

outrageous as to go beyond all possible bounds of decency, and directly and proximately

caused the psychic injuries suffered by Steven and Jonathan. Defendant Officers’ conduct is

conduct that is utterly intolerable in a civilized society.

XI. SEVENTH CAUSE OF ACTION – NEGLIGENT INFLICTION OF EMOTIONAL

DISTRESS

124. Defendant Officers and the City of Cleveland negligently inflicted severe emotional

distress on Steven Ondo and Jonathan Simcox.

XII. EIGHTH CAUSE OF ACTION – MALICIOUS PROSECUTION

125. Defendants prosecuted Steven and Jonathan with malice, for an improper purpose or

a purpose other than bringing an offender to justice, and the prosecution was terminated in

Steven and Jonathan’s favor.

126. Jonathan Simcox and Steven Ondo stood trial and were found innocent of for crimes

that he did not commit and for which there was no probable cause.

127. Defendants acted with conscious disregard, reckless indifference, and/or malice in


failing to disclose accurate facts to the grand jury, thereby securing an indictment against

Steven and Jonathan for felonies and misdemeanors that were not supported with probable

cause.

XIII. NINTH CAUSE OF ACTION – FALSE IMPRISONMENT

128. Defendants knew or should have known that the charges against Jonathan and Steven

were false. In fact, after their first arrest, both were released and not charged after spending

four days in jail. Yet one week later both were arrested again, on different charges and spent

at least three more days in jail. Defendants caused Steven and Jonathan to be arrested

without probable cause on two separate occasions.

XIV. TENTH CAUSE OF ACTION – INVASION OF PRIVACY

129. Each of the Defendants is liable under Ohio law for invading Steven Ondo’s and

Jonathan Somcox’s right to privacy.

130. The Defendants’ willful, wanton and reckless act of publicly ridiculing and mocking

Steven and Jonathan in their front yard, in the “paddywagon” that held other persons being

transported to jail and in the jail publicized the private affairs of Steven and Jonathan that

were of no concern to the public at large.

131. The Defendants’ performed their public acts of ridicule against Steven and Jonathan

willfully, wantonly, and recklessly, and did so with the express intent of outraging the

Plaintiffs and causing them mental suffering, shame, and humiliation. These acts would

result in mental suffering, shame, and humiliation to any person of ordinary sensibilities.

XV. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands that this Court:

A. Award Plaintiffs compensatory damages in an amount to be shown at trial;

B. Award Plaintiffs punitive damages in an amount to be shown at trial;

C. Award Plaintiffs reasonable attorney’s fees, costs and disbursements;


D. Pre and post judgment interest;

E. Grant Plaintiffs such additional relief as the Court deems just and proper.

Respectfully submitted:

/s/ David B. Malik David B. Malik (0023763) LEAD TRIAL ATTORNEY Samuel S. Riotte (0082678) 8437 Mayfield Road, Suite 101 Chesterland, OH 44026 (440) 729-8260 (440) 729-8262 fax [email protected] [email protected] Attorneys for Plaintiffs Robert Farinacci Daniel Chaplain Of Counsel for Plaintiffs


Ondo-Simcox US District Court Complaint

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