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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

James Alan Bush, Plaintiff, v. Officer Miguel Flores (#3881), Defendant.

Case No. 09-cv-01024 (PR) RS AMENDMENT TO COMPLAINT {Fed. R. Civ. P., Rule 15(a)(1)(A)]

Judge Richard Seeborg

AMENDMENT TO COMPLAINT Pursuant to Rule 15(a) (A) of the Federal Rules of Civil Procedure, (1) Plaintiff amends the complaint herein by adding a third cause of action for battery against City of San Jose and Defendant Officer Flores for the use of excessive force in effecting an arrest and for battery committed by offensive touching in the course of an unlawful arrest; specifically, Plaintiff amends the complaint by adding the following new paragraphs after Paragraph 10: 11. Defendant City of San Jose is, and at all times herein mentioned was, COMPLAINT PAGE 1 OF 5 09-cv-01024 (PR) RS

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a municipal corporation, duly organized under the laws of the State of California and situated in the County of Santa Clara. 12. Defendant San Jose Police Officer Miguel Flores (#3881) is an individual, who at all times herein mentioned was an employee of Defendant City of San Jose as a police officer, and in doing the acts hereinafter described, acted within the course and scope of his employment. 13. On or about December 13th, 2008, Plaintiff was at his residence in Defendant City of San Jose resting in bed while suffering from an illness. 14. At that place and time, Defendant Flores entered the apartment building hallway leading to the front door of the plaintiffs residence and demanded that the plaintiff come out to the hallway. Defendant Flores did not announce that the plaintiff was under arrest or that a warrant was issued; Defendant Flores further failed to identify himself. The identity of Defendant Flores and the other three officers who were present as such was not readily apparent to the plaintiff because the lights in the apartment building hallway were not yet on, it was evening (and, therefore, dark), and all four officers were shining flashlights directly in the plaintiffs eyes. Furthermore, the plaintiffs requests that Defendant Flores identify himself were refused. 15. As the plaintiff stepped fully into the hallway to ascertain the identity of the defendant and other officers, Defendant Flores deployed his TASER at point-blank range, causing one of the prongs, which struck the plaintiff directly above his heart, to embed itself into the plaintiffs rib, thereby causing it to shatter. (Upon subsequent COMPLAINT PAGE 2 OF 5 09-cv-01024 (PR) RS

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extraction of the TASER prong, a piece of the plaintiffs rib was discovered to be attached to it.) 16. Plaintiff was ordered to lie face down on the ground with his hands behind his back; the plaintiff immediately complied (which is a fact not in dispute between the parties). In other words, the plaintiff did not attempt to flee or physically resist arrest in any manner whatsoever. 17. Despite the plaintiffs willingness to submit to arrest, Defendant Flores drove his knee into the plaintiffs back directly above the location of the TASER prong with such force as to cause a fracture in the previously shattered rib. Moreover, after applying the handcuffs to the plaintiff, Defendant Flores, after having been notified of an existing injury to the plaintiffs left shoulder (consisting then of only a small avulsion), yanked the plaintiff by his left shoulder to his feet with enough force to cause a break in the plaintiffs shoulder. 18. In doing the acts as alleged above, Defendant Flores acted with the intent to make a contact with the plaintiffs person. In fact, prior to causing the break to the plaintiffs shoulder, and after having been notified of an existing injury by the plaintiff, Defendant Flores stated to the plaintiff, I dont give a fuck about your busted-ass shoulder! 19. Plaintiff is informed and believes and thereon alleges that at the time of the above-described events, and at all other pertinent times, Defendant Flores had no warrant for the arrest of the plaintiff or other facts or information that constituted probable cause that the plaintiff had ever committed or was about to commit a crime, so as COMPLAINT PAGE 3 OF 5 09-cv-01024 (PR) RS

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to provide grounds for a lawful arrest; nor did Defendant Flores have any facts or information that constituted reasonable suspicion that the plaintiff was involved in any unlawful activity so as to provide grounds for any detention or restraint whatsoever on the plaintiffs freedom of movement, and that the plaintiffs detention and arrest was, therefore, unlawful. 20. At no time did the plaintiff consent to any of the acts of Defendant Flores as alleged above. 21. At all times stated herein, the plaintiff found the contact made with his person by Defendant Flores to be harmful and offensive to his person and dignity. 22. As a proximate result of the acts of Defendant Flores as alleged in this third cause of action for battery committed by the unreasonable force in effecting arrest and by unlawful arrest, the plaintiffs shoulder and a rib bone were fractured and/or shattered, and the plaintiff now suffers from cardiac arrhythmia. 23. As a proximate result of the acts of Defendant Flores as alleged in this third cause of action, the plaintiff was hurt and injured in his health, strength, and activity, sustaining injury to his nervous system and heart and person, all of which have caused, and continue to cause, plaintiff great mental, physical, and nervous pain and suffering. Plaintiff is informed and believes and thereon alleges that these injuries will result in some permanent disability to him. As a result of these injuries, the plaintiff has suffered general damages. 24. As a further proximate result of the acts of Defendant Flores, the plaintiff will incur medical and related expenses. The full amount of these expenses is not known to the plaintiff at this time. COMPLAINT PAGE 4 OF 5 09-cv-01024 (PR) RS

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25. The aforementioned conduct of Defendant Flores was willful and malicious and was intended to oppress and cause injury to the plaintiff. Plaintiff is therefore entitled to an award of punitive damages. 26. On or about January 26th, 2009, the plaintiff mailed to Defendant City of San Jose through the Santa Clara County Board of Supervisors and the San Jose Police Departments Internal Affairs Unit a claim for the injuries and damages suffered and incurred by him by reason of the above-described occurrence, all in compliance with the requirements of the California Government Tort Claims Act. 27. On or around March 4th, 2009, Defendant City of San Jose rejected the claim in its entirety. Dated: December 7th, 2009

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James Alan Bush Plaintiff in pro per

09-cv-01024 (PR) RS