HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 001 - SUMMONS AND COMPLAINT• Case 1:17-cv-01177-L TB Document 3 Filed 05/11/17 USDC Colorado Page 1 of 2
/\0 440 (Rev 11/09) Summons in a C1v1 I Acllml
UNITED STATES DISTRICT COURT
for the
District of Colorado
DAKOTA TYLER MCGRATH
l'lai11tijJ
v.
FORT COLLINS POLIC E SERVICC S O FFI Cl!R NICK RODGERS, m 111s
in<li, itlual taratity
Dcfc11<la111
)
)
)
)
)
)
)
Civil Action No. l 7-CV-1 177-L Tll-NYW
SUMMONS IN A CIVIL ACTION
To: (Defc111la111 's 11amc mid address) Nick Rodgers
Fort Collins Police Department
2221 South Timberline Road
Fort Collins, CO 80525
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it)-or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) -you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be se rved on the plaintiff or plaintiffs attorney,
whose name and address are:
Anthony Viorst, Esq.
Viorst Law Offices, PC
950 South Cherry Street, Suile 300
Denver, CO 80246
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
s/ A. Menza
Dn1e: 05 /1 2/201 7 ----------Sig ,wlllrc of Clerk or Deputy Clerk
. Case 1:17-cv-01177-LTB Document 3 Filed 05/11/17 USDC Colorado Page 2 of 2
AO 440 (Rev 12/09) Summons in a C1v1I i\cllon (Page 2)
Civil Action No. 17-CV-1177-L TB-NYW
PROOF OF SERVICE
(This section lJumld not be filed wit/, tl,e court 1111/ess required by Fed. R. Ci,,. P. 4 (I))
This summons for (11 ame of illdil'idual and title , if 011.v)
was received by me on (dme)
0 I personally served the summons on the individual at (place) -----
on (dare)
0 I left the summons at the individual's residence or usual place of abode with (11amc)
; or
----------
, a person of suitable age and discretion who resides there, --------
on (date) , and mailed a copy to the individual's last known address; or --------
0 I served the summons on (name of imfi,,frlual) , who is
designated by law to accept service of process on behalf of (1wme of orga11i:atio11)
on (date) ~ or --------------------------------
0 I returned the summons unexecuted because
0 Other (.~pecif>~:
---------------------
My fees are$ for travel and $ for services, for a total of$ 0.00
I declare under penalty of perjury that this information is true.
Date:
Serl'er 's sig11at11re
Printed name a11d title
Sen•er 's address
Additional information regarding attempted service, etc:
; or
Case 1:17-cv-01177 Document 1-1 Filed 05/11/17 USDC Colorado Page 1 of 5
l.>JS41 (Rev .12/07) CIVIL COVER SHEET
The JS 44 civil cover sheet and the infonnation contained lu:n::in neither replace nor supplement the: filing and s1,.'1Vice of pleadings or other papers ns required by law, except as provided
by local rules of court. TI1is fonn, approved by the Judicial Confcn:ncc of the United States in September 1974, is required for the use ofll,e Clerk of Court for the: purpose of mitfoting
the civil docket sheet. {SEE INSTRUCTIONS ON Tl 11: REVERSE OF TltE FORM ,)
I. (a) PLAINTIFFS
DAKOTA TYLER MCGRATH
DEFENDANTS
FORT COLLINS rouce SERVICES OFFI CE R NICK
RODGERS.in lois indi\·idual capaciiy
(b) County ofResidencc of First Listed Plaintiff _.L:::.a:::.ra.ai .... m::.:.::;e,._r _____ _ County of Residence of First Listed Defendant _L_n_ri_m_c_r _______ _
(EXCEPT IN U.S. rLAINTIFF CASES)
( c) Allomcy's (Finn Name, Address, and Telephone Number)
Anthony Viorst, Esq .. Viorst Law Offices, J>C, 950 South Cherry Street,
Sutic 300, Denver, CO 80246, (303) 759-3808
(IN US. rLAINTJFF CASES ONLY)
NOTE IN LAND CONDEMNATION CASES, USE TIIE LOCATION OF TIIE
LAND INVOLVED .
Allomcys (tr Known)
II. BASIS OF JURISDICTION (rim an "X" in One Bo~ Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(rlace an "X" in One Box for Plain1iff
Cl J U.S Oovemmcn1
Plaintiff
Cl 2 US Government
Dcrendant
;71 3 Federal Question
(U.S. Govemmcn1 Not a l'al1y)
0 4 Oivel!ity
(lndica1e Ci1izcnsl11p or Parties in hem Ill)
IV NATURE OF SUIT (Place an "X" in One Box Onlvl
I rQNTi,ACf TORTS
Cl 110 Insurance PERSONAL INJURY PERSONAL INJUR\'
Cl 120Marine Cl 310 Airplane Cl 362 Pcrson:il Injury•
CJ 130 Miller Act □ 315 Airplane rroduc! Med. Malpracti ce
□ 140 Ncsotiable lnstrumcnl Liabiliiy Cl 365 rcrsonal Injury •
Cl ISO Recovery or overpayment 0 320 A1saul~ Libel & Product Liability
& EnrorccmcntorJudgmen1 Slander Cl 368 Asbestos rerson:il
Cl 151 Medicare Act Cl 330 Federal Employer!' Injury Product
Cl 152 Recovery orDcfaul1cd Liabiliiy Liabiliiy
Stud<,nt Loans Cl 340Marine rERSONAL l'ROPERT\'
(Exel. Veterans) Cl 345 Marine Product Cl 3 70 Oilier r mud
CJ 153 Recovery ofOvcrpayinent Liabiliiy Cl 371 Tru1h in unding
orVeicmn's Benelils Cl 350 Motor Vehicle Cl 380 Oilier Personal
□ 160 Stockhold<,rs' Suiu Cl 355 Motor Vehicle Property Dalll.'llle
□ 19001ltcrContmct Product Liability Cl 385 Propcny Dolll.'lge
CJ 195 Contract l'roduct Liabitiiy Cl 360 Oll1er Pel!OMI rroduct liabilhy
Cl 196 Franchise lniurv
I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS
□ 210 Land Condcmn:uinn Cl 441 Voling Cl 510 Motions lo Vacate
Cl 220 Foreclosure Cl 442 Employment Sen1encc
Cl 230 Rent Lease & Ejcctment Cl 443 Housini:,' Habeas Corpus:
Cl 240 Tons 10 Land Accommodations Cl 530 OcnCTal
Cl 245 Ton rroduct liabiliiy Cl 444 Welfare :i 535 Dcad1 l'enaliy
Cl 290 All Other Real Propcriy CJ 445 Amer. w/Disabililics -□ 540 Mand3mus & Olhcr
Employmcnc □ 550 Civil Righu
(J 446 Amer. w/Disabililics -:i 555 rrison Condition
Olhcr
;J 440 Oilier Civil Rights
(For Divel!i!y Case• Only) and One Box for Dcfrndanl)
rtF DEF
Cilizcn orll1is State it I ¢ I
rtF DEF
lncorporaled or l'rincipal Place CJ 4 CJ 4
Citizen or Another State
Citizen or Subject or a
Forei 1 n Countrv
FORFEITURF.JPENAI TV
Cl 610 Asriculture
Cl 620 011,er Food & Drug
□ 625 Drug Related Seizure
of Property 21 USC 881
0 630 Liquor Laws
Cl 640 R.R. & Truck
0 650 Airline Rei;s.
Cl 660 Occupalio""I
Sarciy/lleahh
Cl 690011,er
I •m R
Cl 7 IO Fair Labor Standards
Ac1
CJ 720 Labor/Mgmt Relations
Cl 730 Labor/MgmtRcponing
& Disclosure Act
Cl 740 Railway Labor Act
Cl 790 Oilier Labor Litigalion
Cl 791 Empl. Ret. Inc.
Sccuriiy Act
11111\llGRATION
orBu1incu In TI1is S1ate
Cl 2 Cl 2 lncorporaled and Prin~ipal l'Ja,~ Cl5 Cl 5
ofDusine$s In Anolhcr Stile
CJ 3 CJ 3 Foreit:n Nalion 06 06
BANKu, rrcv OTlll".R STATtrtES I
Cl 422 App:al 28 USC I 58 CJ 400 State Reapponionmenl
Cl 423 Withdrawal CJ 410 AnliU\ISt
28 USC 157 (J 430 Banks and Banking
(J 450 C ommcrce
■'Nl ■P•'-.i:_1y HI ·.;11 l:!'11 Cl 460 Dq,onation
Cl 820 Copyrighu (J 410 Rockdttr lnOucnced and
Cl 830 ra1cn1 Corrupl Ori;anil-lllions
□ 840 Trademark 0 480 Consumer Credit
IJ 490 Cabl¢1Sat TV
Cl 810 Selective Service
"" IAl,SE "RIT\' (J 850 Sccuri1iCJ/Com1nodi1i w
□ 861 IIIA (13951?) Exchange
□ 862 Black lung (923) Cl 875 Customer Challenge
□ 863 DIWC/OIWW (40S(g)) 12 USC34IO
0 864 SSID Title XVI 0 890 Oll1er Statutory Aclions
□ 865 RSI f405(e)) 0 891 Asricullural AclJ
FEDERAL TAX SUITS □ 892 Economic Stabilization Act
Cl 870 Taxes (U .S. rlaimifT CJ 893 Environmcn1al Mattm
or Dcrcndant) a 894 EnctJlY Allocalion Ac!
Cl 871 IRS-TI1inl Party Cl 895 Fn:cdom oflnfon""lion
26 USC 7609 Act
Cl 9-00Appcal or Fee Dctcnnination
ICl 462 Natuniliza1ion Application Under Equal AcccSJ
□ 463 llabeas Corpu• -10 Justice
Alien Dc1aincc Cl 950 Co115titutionalny of
CJ 465 Oilier lnunisration Slate Statutes
Actions
V. ORIGIN
~ I Original
Proceeding
(Place an "X" in One Box Only)
0 2 Removed from O 3
SlllteCoun
Rcmand1,.-d from
Appellate Court
0 4 Reinstated or O 5 Transfc111;d from O 6 Multid1strict
Reopened anotli~r diSlnct Litigation s c1f.
0 7
Appeal to District
Judge from
Magistrate
Jud ment
Cite the U.S. Civil Statute under which you arc filing (Do not cite jurlsdicllon11l stalulrs unlcu diversity): 42 u.s.c § 1983
VI. CAUSE OF ACTION Brief description of cause:
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IFANY
0 CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23
(Sec inslnlctions):
JUDGE
DEMANDS
DATE
05/11/17
FATTOR~
t·oR Ot"t"ICE USE ONL V
RECEIPT# AMOUNT ArrLYINO IFP JUDGE --------------------
CHECK YES only ,r demanded in complaint:
JURY DEMAND: IZ)Ycs 0No
DOCKET NUMBER
MAO JUDGE ---------
Case 1:17-cv-01177 Document 1-1 Filed 05/11/17 USDC Colorado Page 2 of 5
JS 44 Reverse (Rev 12/07)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the infonm1tion 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. lllis fonn, 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 sub mi tied lo the Clerk of Court for each civil complaint
filed. The attorney filing a case should complete the fonn 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 nameoflhe county where the first listed plaintiff resides at the lime
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 arc several attorneys, list them on an attachment, noting
in this section "(sec attachment)".
II. Jurisdiction. The basis of jurisdiction is sci forth under Ruic 8(11), F.R.C.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 Stales plaintiff. (I) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States arc 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 defemlant code takes precedence, and box
I or 2 should be marked.
Diversity of citizenship. (4) lllis refers to suits under 28 U.S.C. 1332, where parties arc citizens of different states. When Bo)( 4 is checked, the citizenship of the
different parties must be checked. (Sec Section Ill below; federal question actions take precedence over diversity cases.)
111. Residence (citizenship) or Principal Parties. This section of the JS 44 is to be completL-d if diversity of citizenship was indicated above. Mark this section
for each principal party.
IV. Nature of Sult. Place an "X" in the appropriate box. If the nature of suit cannot bcdctcnnincd, be sure the cause of action, in Section VI below, is sufficient
to enable the deputy clerk or the statistical clerks in the Administrative Office to detenninc the nature of suit. lfthc cause fits more than one nature of suit, select
the most dcfiniti vc.
V. Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (I) Cases which originate in the United Stales district courts.
Removed from State Court. (2) Proceedings initiated in slate courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded lo 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 lransfcrred under Title 28 U.S.C. Section 1404(a). Do not use this for within districl transfers or multidistrict
litigation transfers.
Multidistricl Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority ofTitlc 28 U.S.C. Section 1407. When this box
is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision.
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: Onauthonzcil reception of cable service
VII. Requested In Complaint. Class Action. Place an "X" in this box if you arc filing a class action under Ruic 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box lo indicate whether or not a jury is being demanded.
VIII. Related Cases. lllis section of the JS 44 is usL-d to reference related pending cases if any. If there arc related pending cases, insert the docket numbers
and the corrcspondingjudgc names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
4/26/2017
Case 1:17-cv-01177 Document 1-1 Filed 05/11/17 USDC Colorado Page 3 of 5
CM/ECF -U.S. Dlslfict Ccut:cod
Complaints and Other Initiating Documents
1 :17-cv-01037 Panczner v. Western Adventures, Inc. et al
U.S. District Court
District of Colorado
Notice of Electronic Filing
The following transaction was entered by Viorst, Anthony on 4/26/2017 at 8:50 PM MDT and filed on 4/26/2017
Case Name: Panczner v. Western Adventures, Inc. et al
Case Number: I: 17-cv-0 I 037
Filer: Bruce Panczner
Document Number: l
Judge(s) Assigned: None (please contact the court)
Docket Text:
COMPLAINT and Jury Demand against Western Adventures, Inc., lesley fraser (Filing fee $
400,Receipt Number 1082-5489361 )Attorney Anthony Jacob Viorst added to party Bruce
Panczner(pty:pla), filed by Bruce Panczner. (Attachments: # (1) Civil Cover Sheet, # (2) Summons
Summons -Western Adventures, # (3) Summons Summons -Lesley Fraser)(Viorst, Anthony)
l :l 7-cv-01037 Notice has been electronically mailed to:
Anthony Jacob Viorst tony@hssspc .com, michelle@ hssspc.com
l:17-cv-01037 Notice has been mailed by the filer to:
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Sta mp:
[STAMP dcecfStamp_lD= 1071006659 [Date=4/26/2017] [FileNumber-5972453-0
] [922b8b610e3lclcc58f2416b54584b3de9abcla19b6940f26fd9c71a44366ba9753
b24b6f20b65985ae4a17ec4e6e83cb34c0b9ad2539l66a88ae440568d6dc0]]
Document dcscription:Civil Cover Sheet
Original filcname:n/a
Electronic document Stamp:
[STAMP dcecfStamp_JD=l 071006659 [Date =4/26/2017] [FileNumber=5972453-1
] [78a0980027b9c4d22166897067a0b17e7adb4311468el5fl830d3609c93e2071a9a
dab14085a44e2078dbft79029e9ed7c7e8bde49c0a06795a18alaf789216fj]
Document description:Summons Summons -Western Adventures
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_lD= I 071006659 [Date=4/26/2017] [FileNumber-5972453-2
] [14d7ec856620824d2953e3d56a029c0db05e42321c173e85da6fed90ab6eldcb78f
61d3a262cfabbf2fe76994d827 f8bcba659d263 7 c 1Od4e64af622e67b3 5 f5]]
Document description:Summons Summons -Lesley Fraser
Original filename:n/a
Electronic document Stamp:
[STAMP dcec fStamp _ID =-1 0 71 006659 [Date=4/26/2017] [Fi leN umber-5 9724 5 3-3
https://ecf.cod.ustoll"ts.gov/cgi-birvDispatch.pt?507085868697873 112
4/2&'2017
Case 1:17-cv-01177 Document 1-1 Filed 05/11/17 USDC Colorado Page 4 of 5
CM/ECF -U.S. District Courtcod
] [5aea077151ad870c9b0a98f6b84cbcd6af5e3c94d4t206d4d3289abd78bbf3ac2c7
e5160cd250d7a626c4125ee857f44ea90f4fed414df8ec8f56cff4 7d02c98]]
ht1ps-J/ecf.cod.uscourts.gov/cgi-bl i\1Dlspatch.pl?507085868697873
Case 1:17-cv-01177 Document 1-1 Filed 05/11/17 USDC Colorado Page 5 of 5
Michelle
From:
Sent:
To:
Subject:
paygovadmin@mail.doc.twai.gov
Wednesday, April 26, 2017 8:49 PM
Michelle
Pay.gov Payment Confirmation: COD CM ECF
Your payment has been submitted to Pay.gov and the details arc below. If you have any questions or you wish to
cancel this payment, please contact the court you paid at your earliest convenience.
Application Name: COD CM ECF
Pay.gov Tracking ID: 2623PDSQ
Agency Tracking ID: 1082-5489361
Transaction Type: Sale
Transaction Date: Apr 26, 2017 10:48:58 PM
Account Holder Name: Anthony Viorst
Transaction Amount: $400.00
Card Type: Visa
Card Number: ************2219
THIS IS AN AUTO!\1ATED !\IESSAGE. PLEASE DO NOT REPLY.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. l 7-CV-1177
DAKOTA TYLER MCGRATH,
Plaintiff,
V.
FORT COLLINS POLICE SERVICES OFFICER NICK RODGERS, in his individual
capacity,
Defendant.
COMPLAINT FOR DAMAGES AND JURY DEMAND
Plaintiff, Dakota Tyler McGrath, by and through counsel, Anthony Viorst, of the Viorst
Law Offices, P.C., hereby brings this action for damages and jury demand under 42 U.S.C . §
1983 to redress his civil and legal rights, and alleges as follows:
INTRODUCTION
I. This is a civil rights action for damages and other relief in which the plaintiff,
Dakota McGrath, seeks relief for the defendants' violation of his rights secured by The Civil
Rights Act of 1871, 42 U.S.C. § 1983, by the United States Constitution, including its Fourth and
Fourteenth Amendments to the United States Constitution, and by the laws and Constitution of
the State of Colorado. Defendant violated the rights of Dakota McGrath under the Fourth and
Fourteenth Amendments to the United States Constitution, when Defendant Nick Rodgers,
without lawful justification, seized and assaulted Dakota McGrath on or about October 20, 2016.
Defendant's conduct under color of state law proximately caused the deprivation of Plaintiffs
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 2 of 7
federally protected rights. Defendant's conduct was done willfully and wantonly and with
malicious disregard of Plaintiffs rights, feelings and physical health. Plaintiff seeks
compensation for lost wages, loss of quality of life, physical disfigurement, permanent physical
impairment and punitive damages, an award of costs, interest and attorney's fees, and such other
and further relief as this Court deems proper and just.
JURISDICTION AND VENUE
2. This action arises under the Constitution and laws of the United States, and is
brought pursuant to Title 42 U.S.C § 1983. Jurisdiction is conferred on this Court pursuant to 28
U.S.C. § 1331 and 1343.
3. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 139t(b). All
of the events alleged herein occurred within the State of Colorado.
4. Plaintiff has satisfied all conditions precedent to bringing this action.
JURY TRIAL DEMANDED
5. Plaintiff demands a trial by jury on these claims as pleaded herein.
PARTIES
6. At the time of this incident, Plaintiff Dakota McGrath ("McGrath") was a resident
of the State of Colorado, residing in Larimer County, Colorado.
7 . At all times relevant to the subject matter of this litigation, Defendant Nick
Rodgers ("Officer Rodgers" or "Defendant Rodgers") was a citizen of the United States, and
resident of Colorado, and was employed by the Fort Collins Police Services in Fort Collins,
Colorado.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 3 of 7
8. At all times relevant hereto, Defendant Rodgers, sued in his individual capacity,
was acting within the scope of his official duties and employment, under color of state law.
FACTUAL ALLEGATIONS
9. On the evening of October 20, 2016, at approximately 6:30 p.m., Mr . McGrath
and his brother got into an argument. Mr. McGrath and his brother then parted and went their
separate ways.
10. Mr. McGrath's brother then called 911, and told the dispatcher that Mr. McGrath
had head-butted him. .
11. Defendant Rodgers was dispatched at 6:59 p.m. and observed Mr. McGrath taking
things out of his vehicle at approximately 7:05 p.m.
12. Defendant Rodgers called out to Mr. McGrath, but Mr. McGrath was wearing ear~
buds and did not hear him, and so he got out of his car and began walking away.
13 . Defendant Rodgers pursued Mr. McGrath, who walked into an alleyway. At that
time, it was Defendant Rodgers' intent to arrest Mr. McGrath for the crime of third degree
assault, a misdemeanor.
14. Another officer then arrived, pulling up to allow the headlights of his police car to
light the alleyway.
15 . In the alleyway, Defendant Rodgers caught up to Mr. McGrath, and utilized his
steel baton to strike Mr. McGrath from behind, in the area of his head and neck. The steel baton
struck Mr. McGrath in the head down to the neck area, as he was walking down the alley. This
blow rendered Mr. McGrath briefly unconscious, causing him to drop to the ground and hit his
head.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 4 of 7
16. After being knocked down, Mr. McGrath rolled from his stomach onto his back.
At that point, Mr. McGrath was still dazed, and was not actively resisting or obstructing
Defendant Rodgers. Nonetheless, while Mr. McGrath was laying on the ground, Defendant
Rodgers struck Mr. McGrath's right leg multiple times with the steel baton.
17. Due to the crushing force delivered by Defendant Rodgers' baton strikes, Mr.
McGrath's right leg sustained multiple fractures including an open fracture of the proximal end
of his right tibia.
18. Mr. McGrath was transported by ambulance to the hospital, where his open tibial
fracture was diagnosed. Despite the need for immediate follow -up treatment, Mr. McGrath was
then arrested and detained up in the Larimer County Detention Center. At the Detention Center,
Mr. McGrath was denied medical care as well as prescribed medications. Further, for a period of
several days, Mr. McGrath was confined to a blood-soaked bed, and forced to urinate in a bottle,
as the Detention Center staff would not respond to his multiple pleas for assistance.
19. Thereafter, Mr. McGrath underwent extensive medical care, including surgery, in
which a titanium nail/rod was driven forcefully down the center of the entire length of the tibia,
and screwed in place. Mr. McGrath incurred significant medical expenses in order to treat the
injuries caused by Defendant Rodgers. Mr. McGrath has also experienced significant
noneconomic damages due to these injuries, including pain, suffering, emotional distress, and
loss of quality of life. In addition, Mr. McGrath has suffered and continues to suffer from
permanent physical impairment and disfigurement of his right leg.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 5 of 7
FIRST CLAIM FOR RELIEF
(Excessive Force under Fourth Amendment and Due
Process Clause and 42 U.S.C. § 1983 -Officer Rodgers)
20. Plaintiff incorporates the preceding paragraphs by this reference.
21. Defendant Rodgers acted under color of state law, in his capacity as an officer of
the Fort Collins Police Services, at all times relevant to the allegation in this claim for relief.
22. Defendant Rodgers is a "person" under 42 U.S.C. § 1983.
23. Although Mr. McGrath was merely a suspected misdemeanant, Defendant
Rodgers inflicted a steel baton strike to Mr . McGrath's head and neck area and, after Mr.
McGrath fell to the ground, inflicted multiple unduly forceful baton strikes to Mr. McGrath's
right leg, thereby causing multiple fractures to that leg.
24. The conduct and actions of Defendant Rodgers, acting under color of law, when
he inflicted baton strikes to Mr. McGrath's head/neck area and his right leg, were excessive and
unreasonable, were done intentionally, willfully, maliciously, with a deliberate indifference
and/or reckless disregard for the natural and probable consequences of his acts, were done
without lawful justification or reason, and were designed to and did cause specific and serious
physical and emotional pain and suffering in violation of Mr. McGrath's rights as guaranteed by
42 U.S.C. § 1983, and the Fourth and Fourteenth Amendments to the United States Constitution,
including the right to be free from an unreasonable seizure of his person and the right to be free
from the use of excessive, unreasonable, and unjustified force.
25. Mr. McGrath is entitled to damages to compensate him for his economic and non -
economic losses, as well as any permanent impairment and disfigurement, emotional distress
attributable to the violation of his constitutional rights by Defendant Rodgers. In addition, Mr.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 6 of 7
McGrath is entitled to costs and attorney fees pursuant to 42 U.S.C § 1988 and requests pre-
judgment and post-judgment interests as allowed by law.
WHEREFORE, Mr. McGrath respectfully requests that this Court enter judgment in his
favor against the Def end ant, and grant:
• Appropriate relief at law and equity;
• Economic losses on all claims allowed by law;
• Noneconomic damages, including damages for emotional distress, humiliation,
loss of enjoyment of life, and other pain and suffering on all claims allowed by
law in an amount to be determined at trial;
• Damages for permanent impairment and disfigurement;
• Punitive damages on all claims allowed by law in an amount to be determined at
trial;
• Attorney's fees and the costs associated with this action, including expert witness
fees, on all claims allowed by law;
• Pre-and post-judgment interest at the lawful rate;
• Any further relief that this court deems just and proper, and any other relief as
allowed by law.
Case 1:17-cv-01177 Document 1 Filed 05/11/17 USDC Colorado Page 7 of 7
Respectfully submitted this 11 th day of May, 2017.
Plaintifrs Address:
357 Albion Way #CS
Fort Collins, CO 80525
THE VIORST LAW OFFICES, P.C.
s/ Anthony Viorsl
Anthony Viorst, No. 18508
Viorst Law Offices, PC
950 South Cherry Street, Suite 300
Denver, CO 80246
Telephone: (303) 759-3808
Facsimile: (303) 333 -7127
E-mail: tony@J hssspc.com
Attorney for Plaintiff
5111/2017 CM/ECF. U.S. District Court.cod
Complaints and Other Initiating Documents
1 :17-cv-01177 McGrath v. Rodgers
U.S. District Court
District of Colorado
Notice of Electronic Filing
The following transaction was entered by Viorst, Anthony on 5/11/2017 at 8:06 PM MDT and filed on 511 1/2017
Case Name: McGrath v. Rodgers
Case Number: 1:17-cv-01177
Filer: Dakota Tyler McGrath
Document Number: l
Judge(s) Assigned: None (please contact the court)
Docket Text:
COMPLAINT for Damages and Jury Demand against Nick Rodgers {Filing fee $ 400,Receipt
Number 1082-5515310)Attorney Anthony Jacob Viorst added to party Dakota Tyler
McGrath{pty:pla), filed by Dakota Tyler McGrath. {Attachments: # (1) Civil Cover Sheet Civil
Cover Sheet,# (2) Summons Summons)(Viorst, Anthony)
1:17-cv-01177 Notice has been electronically mailed to:
Anthony Jacob Viorsl tony@hssspc .com, michelle@hssspc .com
1:17-cv-01177 Notice bas been mailed by the filer to:
The following document(s) are associated with this transaction:
Document dcscription:Main Document
Original filcname:n/a
Electronic document Stamp:
[STAMP dcecfStamp _ID = I 071006659 [Date=5/ 11 /2017] [FileNumbe r:=5994496-0
] [43900d98d225fd9636ae9a8fe5f2164a7e3 75fd2586f9d468a0e53bd7cf5a833fcc
b666891920ac902ce100b5bd3559d6eab43586de48a45703146e62le85e4d]]
Document description:Civil Cover Sheet Civil Cover Sheet
Original filcname:n/a
Electronic document Stamp:
[STAMP dcecfStamp _I D= 107 t 006659 [Date==5/1 l /2017] [FileNumber-5994496-1
] [6a92db635404bbl763f8a0e7a3257dc992508900233lcb9250c4404abe9b66d7233
e9cbc52bc95a50a812cll63207efl89273167ca2a7774c6b4bed803c8b9cb]]
Document description:Summons Summons
Original filcnamc:n/a
Electronic document Stamp:
[STAMP dcecfStamp_JD =l 071006659 (Date=5/1l /2017] [FileNumber-5994496-2
] [2bf276bd23e640b563cb82ce602c5e81af48f04905904825f70cd780a85846ff601
0c 12ae83 bb572859b 7874b4de49f7cae2294e44e8455ef93 fdc82450 I cf4e)]
https://ecf.cod.uscourts.gov/cgi-bin/Dlspatch.pl?112450042295213 1/1