Month: January 2023

Montana Justice Reinvestment. Millions have been spent and I am angry.

MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

  JOSHUA JAMES HEMMY,   Cause No. BDV-22-357
Plaintiff,  
V. AMENDED COMPLAINT
  FOR DAMAGES AND
  DEMAND FOR JURY TRIAL
CASCADE COUNTY,Defendant. 

COMES NOW, the Plaintiff, Joshua James Hemmy, by and through his attorneys of record, and file this Amended Complaint.

The first filed complaint named individual detention officers in their official capacity as defendants, however, as the claims in this case are against the governmental entity itself Cascade County, this Amended Complaint intends all claims remain in full force and effect against the County. This Amended seeks to correct the record to comply with naming the sub-governmental entity alone, but in no way seeks to limit the rights of Plaintiff or limit Plaintiff’s causes of action for the claims against the remaining defendant sub-governmental entity employer Cascade County Sheriff’s Office or prejudice or limit any liability under the theory of Respondeat Superior or Mont. Code Ann. § 2-9-102, for the actions of the named defendants being removed in this Amended Complaint.

INTRODUCTION

I. Joshua James Hemmy, (“Plaintiff’), files this action in his individual capacity as he was subjected to a violent, visual, physical forced inspection of his body, including his anus, (“strip search and cavity search”), after being cited and booked into the Cascade County Detention Center (“Detention Center”), on misdemeanors for: (I) Criminal Trespass to Property, (2) Obstructing a Peace Officer, and (3) Disorderly Conduct. Such searches were conducted without reasonable suspicion to believe that Plaintiff was concealing a weapon, contraband, or evidence of the commission of a crime. These searches violate § 46-5-105, MCA, which states the following:

A person arrested or detained for a traffic offense or an offense that is not a felony may not be subjected to a strip search or a body cavity search by a peace officer or law enforcement employee unless there is reasonable suspicion to believe that the person is concealing a weapon, contraband, or evidence of the commission of a crime.

Further, the searches directly violated § 46-5-105, MCA, the statute “unequivocally prohibits suspicionless strip searches of those arrested for minor offenses in any situation.”

Rogers v. Lewis and Clark County, 2020 MT 23,    33.

  • If law enforcement had a reasonable suspicion that a person entering the Detention Center was concealing a weapon, contraband, or evidence of the commission of a crime, such facts would be set forth in police reports generated either by the arresting officer or a deputy at the Detention Center. Upon information and belief, no such police report(s) exist in this matter.

JURISDICTION, VENUE, AND PARTIES

  • This Court has jurisdiction over this action pursuant to§§ 3-5-302 and 3-5-312, MCA. This Court has personal jurisdiction over Defendants pursuant to Rule 4(B), M.R.Civ.P. and Mont. Const. Art. 11, § 18.
  • The events that form the basis of this Complaint transpired in Cascade County, Montana.

Venue is proper pursuant to §§ 25-2-125, 25-2-126, and 25-2-117, MCA.

  • The Plaintiff is and was, at all times pertinent, a citizen of the United States and a resident of the state of Montana.
  • The Plaintiff was arrested in Cascade County within the applicable statute of limitations and detained at the Detention Center for offenses that were not felonies, was directed to a padded cell, and was subjected to a strip search and cavity search at the Detention Center without reasonable suspicion for the strip search or probable cause for the cavity search.
  • Defendant Cascade County is a political subdivision of the state of Montana. By statute or custom, Cascade County is responsible for the custody of persons detained by the Cascade County Sheriffs Office and the Great Falls Police Department at the Detention Center for all offenses for which persons are arrested or detained in Cascade County, Montana.
  • Cascade County Sheriffs Office is the chieflaw enforcement agency in Cascade County, Montana, and is responsible for the custody of persons detained by the Cascade County Sheriffs Office and the Great Falls Police Department at the Detention Center.
  • Jesse Slaughter is the Cascade County sheriff, who is elected by the residents of Cascade County, and is the chief executive officer of the Cascade County Sheriffs Office. Slaughter commands the staff and oversees all law enforcement operations for the Cascade County

Sheriffs Office, including the Detention Center.

  1. Corey Reeves is the Cascade County undersheriff, who commanded the staff and oversaw law enforcement operations at the Detention Center during portions of the applicable statutes of limitations.
  2. Jason Corscadden, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.
  3. Gabrielle Heaton, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.
  4. Tracy Moore, a Detention Center employee, performed the strip search/ cavity search of Plaintiff at the Detention Center.
  1. The Plaintiff does not know the true name of other Detention Center employee(s), who performed the strip search/ cavity search of Plaintiff at the Detention Center.

FACTUAL ALLEGATIONS

  1. On August 1, 2020, Officer Adam Olson (“Olson”), and Officer Tad Kimmet, (“Kimmet”), Great Falls Police Department, were dispatched to Benefis West Campus in regard to a male that was being loud and appeared agitated.
  2. The male, identified as Plaintiff, was eventually arrested and cited for Criminal Trespass to Property, Obstructing a Peace Officer, and Disorderly Conduct, which are all misdemeanor offenses.
  3. Olson transported the Plaintiff to the Detention Center and released him to Detention Center staff.
  4. At the Detention Center, the Plaintiff took a shower and dressed into his regular clothes after completing the shower.
  1. Detention Center employee, Jason Corscadden, (“Corscadden”), then escorted Plaintiff to a padded cell in order to conduct a strip search.
  2. Deputy Riley McDermott, (“McDermott”), Cascade County Sheriffs Office, interviewed

Detention Officer Gabrielle Heaton, (“Heaton”), and Corscadden, who both informed that they were escorting Plaintiff to the padded cell to conduct a strip search. The report indicates that it was going to be a “forced strip search.” McDermott was also informed that Plaintiff was not on drugs but was believed to be mentally unstable.

  • After entering the padded cell, Detention Officers Corscadden, Moore, Heaton, and John Doe 2 conducted the forced strip search and penetrating body cavity search of Plaintiff.
  • The Plaintiff refused the search and an altercation ensued.
  • The strip search and penetrating body cavity search were ordered to be conducted prior to any physical altercation between the Plaintiff and detention center employees.
  • Plaintiff was subsequently charged with felony Assault of a Peace Officer. The charge
  • occurred after the strip search and body cavity searches were performed.
  • All criminal charges against the Plaintiff were eventually dismissed.
  • There were no booking charges, nor any booking documents for Plaintiff when he entered the detention center. The Plaintiff was never charged (1) Criminal Trespass to Property, (2) Obstructing a Peace Officer, and (3) Disorderly Conduct.
  • There was no justification, nor need for the strip search to occur, nor any justification, nor need for the penetrating body cavity search to occur. Nor were there any extrinsic circumstances to justify the ordering of the strip search in the first place. Consequently, due to actions and omissions of the Defendant, the Plaintiff has suffered from extreme emotional harms, as well as bodily injury, and as a result, he has had to seek medical treatment.

APPLICABLE LAW TO ALL COUNTS – RESPONDEAT SUPERIOR

  • All acts and omissions by Detention Center employees related to the allegations set forth in this Complaint are imputed upon all employees of the County under the doctrine of respondeat superior and§ 2-9-102, MCA.

COUNT I – CONSTITUTIONAL VIOLATIONS

  • Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • Mont. Const. Art. 2, § 10 provides that “the right of individual privacy is essential to the well-being of a free society ad shall not be infringed without the showing of a compelling state interest.”
  • Mont. Const. Art. 2, § 11 provides in relevant part that “the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.”
  • Defendants violated§ 46-5-105, MCA, by subjecting the Plaintiff to an illegal strip search and Mont. Const. Art. 2, § 10, and Mont. Const. Art. 2, § 11 by subjecting Plaintiff to an unwarranted penetrating body cavity search.
  • The Plaintiff is entitled to monetary damages for violations of his state constitutional rights.

COUNT II – NEGLIGENCE

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • Defendants had a duty to follow the law, and their own policies and procedures in congruence with the law, and owed a duty of care to the Plaintiff while the Plaintiff was in the Detention Center.
  • Defendants breached their respective duties of care.
  • As a direct and proximate result of the Defendants’ breaches, the Plaintiff was injured.

COUNT III – NEGLIGENCE PER SE

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • Defendants violated§ 46-5-405, MCA, by subjecting the Plaintiff to an illegal, forced strip search and penetrating body cavity search.
  • Section 46-5-105, MCA, was enacted to protect persons “arrested or detained for a traffic offense or an offense that is not a felony.”
  • The Plaintiff is a member of the specific class of persons that § 46-5-105, MCA, was enacted to protect.
  • Section 46-5-105, MCA, was enacted to protect the Plaintiff from the exact type of harm that he suffered.
  • Section 46-5-105, MCA, was enacted to regulate members of Defendants’ class, i.e., peace officers or law enforcement employees.
  • As a direct and proximate result of Defendants’ violations of § 46-5-105, MCA, the Plaintiff was injured.

COUNT IV – NEGLIGENT SUPERVISION

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Defendant was aware or should have been aware of the fact that the strip search and penetrating cavity search that was conducted was illegal. The supervisors that permitted the activity to occur were negligent in their duties to supervise, train, its employees and enforce the relevant law at the Detention Center.
  • Defendant owed a duty to the Plaintiff to exercise reasonable care in hiring, training, and supervising employees on the basis of a special relationship between Defendants and the Plaintiff.
  • Had Defendants not been negligent in their duties to supervise, train, and enforce the relevant law at the Detention Center, the strip search and penetrating body cavity search would not have occurred.
  • Consequently, the Plaintiff was injured due to Defendants’ negligent supervision in an amount to be proven at trial.

COUNT V – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Plaintiff has suffered serious and severe emotional distress due to Defendants subjecting him to a strip search and cavity search in the Detention Center.
  • The serious and severe emotional distress was a reasonably foreseeable consequence of Defendants’ intentional acts of subjecting the Plaintiff to a strip search and cavity search in the Detention Center.

COUNT VI – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Plaintiff has suffered senous and severe emotional distress due to Defendants subjecting him to the strip search and the cavity search in the Detention Center.
  • The serious and severe emotional distress was a reasonably foreseeable consequence of Defendants’ negligent acts of subjecting the Plaintiff to the strip search and cavity search in the Detention Center.

COUNT VII – INVASION OF PRIVACY

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • Defendants committed wrongful intrusions, both negligently and intentionally, into the Plaintiffs private activities in such a manner as to outrage or cause mental suffering, shame, anguish, and humiliation to a person of ordinary sensibilities.
  • The Plaintiff has suffered mental suffering, shame, anguish, and humiliation due to Defendants’ wrongful intrusion into the Plaintiffs private activities and body.

COUNT VIII – ASSAULT

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Defendants assaulted the Plaintiff during the strip search and cavity search at the Detention Center.
  • The Defendants’ actions caused Plaintiff to be apprehensive of harmful and offensive conduct.
  • The Defendants undertook such actions without lawful justification.
  • The Defendants’ actions caused injury or apprehension of injury.

COUNT IX- BATTERY

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Defendants engaged in the intentional touching and the application of force to the body of the Plaintiff.
  • The Defendants’ intentional touching and application of force to the body of the Plaintiff was harmful or offensive.
  • The Defendants’ intentional touching and application of force to the body of the Plaintiff was without the Plaintiffs consent.

COUNT X- FALSE IMPRISONMENT

  • The Plaintiff realleges and incorporates the foregoing paragraphs by reference as though fully set forth herein.
  • The Defendants detained the Plaintiff in a padded cell with the express intent of performing a forced strip search.
  • The Defendants’ detention of the Plaintiff was willful.
  • The Defendants’ detention of the Plaintiff in the padded cell with the express intent of performing the forced strip search was without the Plaintiff’s consent.
  • The Defendants’ detention of the Plaintiff in the padded cell with the express intent of performing the forced strip search was unlawful because it was done without the requisite reasonable suspicion necessary to perform such a search in the state of Montana.

JURY TRIAL DEMAND

The Plaintiff does hereby demand a trial by jury on all issues so triable.

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff requests the following relief:

  1. For judgment in favor of the Plaintiff and against Defendants for all damages caused by Defendants’ conduct, including general, special, compensatory, and pre-judgment and post-judgment interest in an amount to be proven at trial.
  • For attorney’s fees and costs, including those necessitated by this action pursuant to the private attorney general doctrine or any other applicable doctrine of law or equity.
  • For all other relief that is just and proper.

A mentally ill man is taken into custody for misdemeanor charges. He is taken to the detention center where he is NOT booked in. At least three correctional officers forcibly penetrate his anus causing injuries sufficient for him to seek medical care. There were no booking charges, nor any booking documents. The Plaintiff was never charged with 1) Criminal Trespass to property, 2) Obstructing a Peace Officer and 3) Disorderly Conduct.

Montana is in the middle of a legislative session. Every member of both chambers should be angry. Every citizen in the State of Montana should be angry. Montana has spent millions of dollars pretending to reform criminal justice. The foundation of criminal justice starts at the beginning of the process. If the foundation is bad no structure or organization can withstand. A faulty foundation always leads to the destruction of the structure or organization. You cannot build on a faulty foundation. Yet Montana continues to attempt to build reform on a faulty foundation. We cannot confuse improvement with reform. Yes, we need to improve conditions at our state prisons but that does not constitute reform.

Reform must start at the foundation, not on the second or third floor of the structure. Reform must start with the initial contact and investigators, with the prosecutor and the judge. Law enforcement must be reformed. We must pass laws that law enforcement, investigators and prosecutors cannot lie to the defendant. We have to stop overcharging defendants to make them plead guilty to lessor offenses. Hyperbole by investigators and prosecutors in the court room have to be stopped. Judges have to be held accountable for their “gatekeeping” responsibilities. Any prosecutor that exaggerates to the jury, hyperbolizes evidence and twists statements has to be held in contempt. We must pass sufficient laws to protect the truth in justice. A judge cannot just tell a jury to disregard what they heard. The prosecutor or investigator must be held accountable in front of the jurors. Correctional officers must know the law and what they cannot do. A correctional officer should be given a test every six months as to the laws pertaining to their duties. Every correctional officer should know they cannot forcibly penetrate the anus of a mentally unstable man brought in on misdemeanor charges.

This is the foundation of criminal justice. This is where the strength of the system begins. A faulty foundation will always lead to the destruction of the structure or organization. Do not confuse improvements with reform. Reform starts at the foundation.