Case 2:19-cv-02562-DWL--JFM Document 1 Filed 04/22/19 Page 1 of 8

1 Elizabeth D. Tate AZ Bar No. 032659

2 Elizabeth D. Tate Attorney at Law
2953 N. 48th Street
3 Phoenix, AZ 85016
4 Telephone (602) 670-4653
Fax (480) 935-3746
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Attorney for Plaintiff Antonio Rene Garcia-Goff
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9 IN THE UNITED STATES DISTRICT COURT FOR THE
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DISTRICT OF ARIZONA
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12 Antonio Rene Garcia-Goff, an individual. ) Case No.:
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13 Plaintiff, ) COMPLAINT
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vs. ) JURY TRIAL DEMANDED
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)
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City of Phoenix, a municipal corporation; )
Officer D. McCarthy #8141, )
18 Defendants. )
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)
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22 COMES NOW, Plaintiff Antonio Rene Garcia-Goff, by and through his
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attorney of record, Elizabeth Tate, and hereby submit his Complaint against
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25 Defendants, and each of them, and alleges as follows:
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3 NATURE OF THE ACTION
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5 1. This is an action brought by Plaintiff for compensatory injunctive and
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declaratory relief and damages against the City of Phoenix and its Police Officer
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D. McCarthy #8141 Plaintiff’s Fourth Amendment and Fourteenth rights under

9 the U.S. Constitution were violated, through 42 U.S.C. Section §1983.

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11 PARTIES, JURISDICTION AND VENUE
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2. At all times relevant hereto to this action, Plaintiff, Antonio Garcia-D.
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14 3. Upon information and belief, always relevant hereto this action,
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Defendant,
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17 Officer D. McCarthy #8141 (hereinafter “McCarthy”), was a resident of Phoenix,
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Arizona and engaged in a policy of excessive force.
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20 4. Upon information and belief, always relevant hereto this action,

21 Defendant, City of Phoenix was a municipal corporation, which has an

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established The Phoenix Police Department, established for serving and
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24 protecting residents of Phoenix. City of Phoenix is liable for Defendant
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McCarthy’s violation of Garcia-Goff’s Fourth and Fourteenth Amendment rights
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27 because McCarthy acted pursuant to a policy of excessive force against its
28 citizens including the use of police dogs.

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2 FACTUAL BACKGROUND
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5. On July 20, 2017, Antonio Rene Garcia-Goff was homeless, down on
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5 his luck, living out of his 1998 Toyota Camry at 15809 North Hana Maui
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Drive in Phoenix, Arizona. At around 8:00 a.m. Phoenix Police Officer
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8 George Davis knocked on the window of Garcia-Goff’s vehicle to inform
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him that someone had reported that a suspicious person was driving
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around the neighborhood.
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12 6. Garcia-Goff rolled down the window of his vehicle. Officer Davis looked
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into Garcia-Goff’s vehicle and saw a knife and a stun gun on the
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15 passenger seat. Officer Davis asked Garcia-Goff what he was doing
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with the knife and the stun gun. Garcia-Goff rolled up his window and
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18 drove away because he knew he had a warrant. Officer Davis opened

19 fire on Garcia-Goff’s vehicle. Garcia-Goff drove the car for a while then
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pulled the car over, got out and started running on foot.
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22 7. Police ran a search on his car plates and identified Garcia-Goff. Police
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complied a search team to hunt Garcia-Goff down to arrest him. Many
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25 police officers searched the areas where Garcia-Goff hid with the
26 assistance of a helicopter.
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1 8. The manhunt went on for about 4 hours. Finally, Garcia-Goff ran into
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the backyard of a residence located on North 1st Street in Phoenix and
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4 hid under a bench. When Officers located Garcia-Goff, he clearly
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stopped fleeing as he was under the bench and clearly said to the
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7 officers surrounding him, “I give up.” Officer McCarthy, who was among
8 SAU officers in the backyard where Garcia-Goff was located, with his
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police dog, Fracken, said to Garcia-Goff, “You’re going to wish you said
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11 that earlier” and commanded Fracken to attack Garcia-Goff unleashing
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excessive-deadly force on Garcia-Goff. Fracken pounced on Garcia-
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14 Goff and began biting Garcia-Goff near the throat, arm and knee. Other
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SAU officers then jumped on Garcia-Goff and punched him telling
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Garcia-Goff, “You are going to prison.”, never telling him the reason

18 why.
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9. Officer Wallace then arrested Garcia-Goff taking him to Honor Health
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21 where he was treated for dog bites and bullet fragments while in police
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custody. Then Officer Wallace took Garcia-Goff to jail to book him.
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24 10. Defendant McCarthy unreasonably used excessive force against
25 Garcia-Goff who was unarmed and shirtless by releasing Fracken on
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Garcia-Goff who had stopped fleeing, posed no immediate threat to
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28 McCarthy or the other SAU officers. McCarthy acted pursuant to City of

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1 Phoenix policy of using excessive force including the use of dogs to

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unconstitutionally exact punishment out of citizens who run from
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4 police.
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10 (42. U.S.C. § 1983- Excessive Force in violation of the Fourth and
Fourteenth Amendments)
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12 11. Plaintiff incorporates by this reference each allegation previously
13 made in this Complaint, as if fully set forth herein.
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12. The individual Defendant to this claim, always relevant hereto, was
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acting under the color of state law in his capacity as a City of Phoenix police
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officer and his acts and omissions were conducted within the scope of his official
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duties or employment.
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13. At the time of the complained of events, Plaintiff had a clear
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constitutional right under the Fourth Amendment to be secure in his person from
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unreasonable seizure through excessive-deadly force.
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22 14. Plaintiff also had a clear constitutional right under the Fourteenth

23 Amendment to bodily integrity and to be free from excessive-deadly force by law

24 enforcement.
25 15. Defendant knew or should have known these rights at the time of the
26 complained of conduct as they were clearly established at the time.
27 16. Defendants acts and use of the police dog which is excessive-deadly
28 force, as described herein, were objectively unreasonable considering the facts

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1 and circumstances confronting them and violated Fourth Amendment rights of

2 Plaintiff.
3 17. Defendants actions and use of excessive-deadly force, as described
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herein, were also malicious and/or involved reckless, callous, and deliberate
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indifference to Plaintiff’s federally protected rights. The excessive-deadly force
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used by the Defendants to instruct Fracken to attack Garcia-Goss when not
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warranted shocks the conscience and violated Fourteenth Amendment rights of
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Plaintiff.
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18. Defendants unlawfully instructed a police dog, Fracken, to attack
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Plaintiff who was peaceful and compliant by means of objectivity unreasonable,
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12 excessive, deadly and conscious shocking physical force, thereby unreasonably

13 restraining Plaintiff of his freedom.

14 19. The forced used constituted deadly force in that it could have caused
15 death and did cause serious bodily injury with Fracken biting Garcia-Goff in his
16 neck, legs and arms.
17 20. Defendants failed to take reasonable steps to protect Plaintiff from
18 objectively unreasonable and conscience shocking excessive-deadly force of the
19 police dog despite being able to do so and therefore each are liable for the
20 injuries and damages resulting in the unreasonable and conscience shocking
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deadly force of each Defendant.
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21. The acts and/or omissions of Defendant McCarthy were the moving
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forces behind Plaintiff’s injuries.
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22. As a direct and proximate result of Defendants’ unlawful conduct,
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Plaintiff suffered actual physical and emotional injuries, and other damages and
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losses as described herein entitling him to compensatory and special damages in
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amounts to be determined at trial. As further result of the Defendants’ unlawful
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conduct, Plaintiff has general damages in amounts to be established at trial.

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1 23. In addition to compensatory, economic, consequential and special

2 damages, Plaintiff is entitled to punitive damages against Defendant McCarthy
3 under 42. U.S.C. § 1983, in that the action Defendant McCarthy was taken
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maliciously, willfully or with reckless or wanton disregard of the constitutional
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rights of Plaintiff.
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DEMAND FOR TRIAL BY JURY
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Plaintiff hereby demands a trial by jury on all his claims, pursuant to the
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10 U.S. Constitution Seventh Amendment and Federal Rules of Civil Procedure
11 Rule 38 (a,b).
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13 PRAYER FOR RELIEF
14 WHEREFORE, Plaintiff, reserves the right to amend this Complaint at the
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time of trial to include all items of damages not yet ascertained, prays judgment
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17 against the Defendants, and each of them, as follows:
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1. An order awarding Plaintiff actual and compensatory damages for
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20 violations of civil rights and restitution in an amount according to proof a time of
21 trial;
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2. An order awarding Plaintiff actual, punitive and compensatory
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24 damages in compensation for unreasonable excessive use of force; Plaintiff
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does not seek punitive damages against Defendant City of Phoenix;
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27 3. An order awarding Plaintiffs reasonable attorney’s fees and costs;
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1 4. An order awarding Plaintiff prejudgment interest according to proof;

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and
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5. For such other and further relief as the Court deems just and proper.
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6 DATED this 22nd of April, 2019.
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8 LAW OFFICE OF ELIZABETH D. TATE
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10 By:/s/ Elizabeth D. Tate
11 _________________________________
ELIZABETH D. TATE
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Attorney for Plaintiff
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