The officers were responding to a complaint about three white prostitutes and a drug dealer, but that activity was reported two blocks away. The honor student they grabbed, 12-year-old Dymond Milburn, is black.

The case has gone to trial once, but the judge declared a mistrial on the first day. A retrial has been set for February.

The lawsuit says Milburn went outside her Galveston home at 7:45 p.m. on August 22, 2006 because the circuit breaker had tripped and the electricity was off. Her mother asked her to flip the breaker back on.

According to the lawsuit, that's when the van screeched up and the officers jumped out. One of the officers decided the girl's red athletic shorts were tight, so he said, "You're a prostitute. You're coming with me."

The suit says the girl grabbed onto a tree and started yelling, "Daddy! Daddy!" When her parents heard her cries, they rushed outside to find the police allegedly beating her with a flashlight and their hands.

Dymond went to the hospital that night with black eyes, bruises, cuts, double vision, and a bloody ear.

Three weeks later, according to the lawsuit, police arrested her at school for assaulting a public servant.

The lawsuit seeks unspecified damages.

According to the Houston Press, an attorney for the police officers says both the father and Dymond were arrested for assaulting the officers.

"The father basically attacked police officers as they were trying to take the daughter into custody after she ran off," said William Helfand.

The city found the officers' conduct was appropriate under the circumstances, Helfand says.

Dymond Milburn's attorney expect to enter mediation early next year to bring the case to a close, according to the Press.

 

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
EMILY MILBURN, INDIVIDUALLY
AND AS NEXT FRIEND OF DYMOND
LARAE MILBURN,
PLAINTIFF
V. CIVIL ACTION NO. 08-193
SERGEANT GILBERT GOMEZ [BADGE #987],
OFFICERS DAVID ROARK [BADGE #332],
JUSTIN POPOVICH [BADGE #336], AND
SEAN STEWART [BADGE #392],
DEFENDANTS
PLAINTIFF, EMILY MILBURN, INDIVIDUALLY AND AS NEXT FRIEND OF DYMOND LARAE MILBURN’S, ORIGINAL COMPLAINT [FIRST AMENDED]
This amended complaint is filed with respect to the violation of Plaintiff’s constitutional rights, and the illegal arrest and detention of Plaintiff, Dymond Milburn, by Officers David Roark, Sean Stewart, and Sergeant Gilbert Gomez, Galveston Police Department, hereinafter and sometimes referred to as Defendants and/or Defendant Officers.1
Plaintiff would show this Honorable Court as follows, to-wit:
1 This amendment is filed in order to supplement the complaint and to voluntarily stipulate dismissal of Officer Justin Popovich [Badge #336].
Jurisdiction
1. Jurisdiction vests under 28 U.S.C. § 1331 (federal
question); 42 U.S.C. § 1983; 42 U.S.C. § 1343 (civil rights).
2. Plaintiff asserts pendent jurisdiction for the state law claim of illegal arrest and detention.
3. The incidents that form the basis of this lawsuit occurred in Galveston County, Texas.
Parties
4. Plaintiff, Emily Milburn, is a resident of Galveston County, Texas.
5. The Defendant Officers were employees of the City of Galveston Police Department at the time of the incident which is the subject of this lawsuit.
6. The incident which is the subject of this lawsuit occurred in Galveston County, Texas.
Factual History
7. On the night of August 22, 2006, Dymond Milburn’s mother, Emily Milburn, was preparing her children for school the next day when a breaker broke, cutting off electricity to the family’s home located at 2001 24th Street, Galveston, Texas. Emily Milburn asked her child, Dymond, to go outside and turn on the breaker switch located downstairs and outside the house.
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8. When Plaintiff Dymond Milburn went outside the house toward the breaker box, a blue van drove up to the house. The time was roughly 7:45 p.m.
9. Four (4) officers exited the van and ran toward Dymond Milburn, who Officer Roark admitted under oath was just standing there. One (1) of the men grabbed her and said “you’re a prostitute. You’re coming with me.”
10. The Officers travelled to the scene together in an unmarked blue van, around 7:45 p.m. Defendants Gomez and Roark observed two (2) males across the street and one (1) female (Dymond) standing beside a bush. Defendant Roark suspected Dymond was a prostitute due to the “tight shorts” she was wearing. Defendant Sergeant Gomez observed a “Black female” and ordered the officers to exit the vehicle and detain her. The suspicion was unfounded and unreasonable.
11. Dymond’s shorts were not tight.
12. The men were later identified as Officers Justin Popovich, Sean Stewart, and David Roark, and Sergeant Gilbert Gomez of the Galveston Police Department, Narcotics Division. They were not in uniform. The officers did not identify themselves as police.
13. Dymond grabbed a tree and started yelling “Daddy, Daddy, Daddy.”
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14. Dymond was twelve (12) years old at the time of these events.
15. The officer who was holding Dymond covered her mouth. The officer was ultimately identified as David Roark.
16. Roark was accompanied by Officers Popovich, Stewart, Quiroga, and Sergeant Gomez. Officers Stewart and Roark attempted to corner Dymond Milburn. Roark initially grabbed Dymond; Officer Stewart arrived and held one of Dymond’s arms while Officer Roark handcuffed the other. Sergeant Gomez also grabbed Dymond.
17. Wilfred Milburn, Dymond’s father, was on the balcony when he heard his daughter’s cries for help and came outside. Emily Milburn also heard the cries and ran outside. When they arrived outside, Dymond was hysterical and holding on to the tree with one arm; two officers were striking Dymond in the head, face and throat.
18. At no time did the supervising officer (Gomez) on the scene intervene and stop the illegal seizure and assault.
19. The Officer later identified as Officer Roark stated that they had received a call reporting three (3) prostitutes in the neighborhood and that drug dealing was “going down.”
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20. Officer Roark hit Dymond in the back of head with a flashlight, hit her neck, throat, slapped her across the face, and told her to get off the tree.
21. Wilfred Milburn told the officer “that’s our daughter. She’s twelve.” The officer responded, “I don’t care if she’s twenty-two, thirty-two, or forty-six. Tell her to calm down.”
22. Dymond’s parents asked the officers if they could comfort their daughter. Their request was denied.
23. The family’s five (5) month old puppy grabbed the officer’s leg. The officer threatened that if they did not grab the dog, he would shoot it.
24. It was ultimately learned that the dispatch call the officers were responding to reported three (3) White females soliciting one (1) White male and one (1) Black male drug dealer. The reported location was Avenue P and One-Half (P1/2) and 24th Street, Galveston, Texas.
25. Dymond is an African-American female. During her encounter with the officers on August 22, 2006, she was dressed in a black and white T-shirt and red, cotton athletic shorts. At the time, Dymond was five (5) feet and six (6) inches tall, and weighed one hundred and twenty (120) pounds. She was an honor student attending advanced classes at Austin Middle School.
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26. As a result of the Officers’ assault, Dymond suffered from pain in the back of the head, lower back pain, a sprained wrist with abrasions, and throat, neck and face pain. Her parents took her to the University of Texas Medical Branch for treatment. They arrived at the emergency room at 9:24 p.m. on August 22, 2006. Dymond was treated for head injuries and multiple contusions. The examining physician found that Dymond suffered injuries from multiple blows to the head, face, neck, lower back, left shoulder, and left hip/waist area. She suffered a contusion to the back of the head (where she was struck with a flashlight). There were abrasions on her arm and wrist. Her throat was swollen; she had difficulty swallowing, nausea and vomiting, and hoarseness of voice due to being struck in the throat. She had black eyes, scalp lacerations, tenderness of the vertebrae. She was experiencing double vision and loss of hearing. Dymond’s ear drum and nose were also injured (blood in ear, bruised nasal septum, and nose bleed).
27. On Friday, September 15, 2006, at 10:00 a.m., twelve (12) year old Dymond Milburn was arrested for assaulting a public servant. The arrest took place while Dymond was at school.
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28. Since the incident, Dymond has had regular nightmares in which police officers are raping her, beating her, and cutting off her fingers. Her fear prevented her from participating in normal activities (going outside to play) which she no longer considered safe. Dymond sought psychological treatment, and on October 31, 2006, she was diagnosed with post-traumatic stress disorder due to the incident which is the subject of this lawsuit.
29. Plaintiff Dymond Milburn’s arrest was without probable cause and without due process. Plaintiff was required to hire counsel to defend her rights against the unfounded charges. Trial on the case against Dymond Milburn commenced on October 3, 2007; however, a mistrial was declared the same day. At the time of the filing of this lawsuit, no retrial is pending.
Causes of Action
Color of State Law and Violation of
Clearly Defined and Known Rights
30. Defendant Officers at the time of the incident were police officers for the City and County of Galveston. At all times material to this action, Defendants were acting under color of law.
31. Defendants’ actions on August 22, 2006, violated Plaintiff’s clearly defined rights, including Plaintiff’s right to be free from excessive force (seizure and
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detention). The seizure, assault, and detention were not reasonable and were without probable cause. The seizure worked to deny Plaintiff of a known right and privilege. The assault was unjustified under established state and federal law and violated Plaintiff’s rights. Such rights were known rights at the time of the application of excessive force and detention.
32. Plaintiff Emily Milburn was present and witnessed the traumatic assault on her daughter, Dymond Milburn.
33. Plaintiff contends that it was unreasonable to mistake a twelve (12) year old girl in gym shorts and a t-shirt for a prostitute simply because of her sex, and to act on such reasoning without first identifying themselves and investigating to establish probable cause. Furthermore, the Defendants used excessive force to detain Dymond Milburn, a child.
34. It was also unreasonable to mistake Plaintiff for a prostitute when the dispatch call and police report identified “three female whites soliciting white males and male black dealer on location.” Plaintiff was alone, she is African-American and not White. Officer Roark has admitted under oath that they identified her as a possible prostitute because she was the only female they saw.
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35. The Defendants were unreasonable in continuing to treat the child as a dangerous perpetrator when they heard her shout “Daddy, Daddy.” The screams were loud enough for a witness/neighbor to hear from his property, 2-300 feet from the house during the incident and recognize the voice as that of a child.
36. Even when Dymond Milburn’s father and mother informed the Defendants that Dymond was their twelve (12) year old daughter, Defendants did not release her.
37. The Defendants did not have probable cause to detain and arrest Dymond Milburn. In fact, Defendants accused her of assaulting them while they were trying to arrest her for assaulting them and not for prostitution.
38. It was unreasonable for Officers Roark and Stewart to strike a child in the head, face, and throat, while she was hanging onto a tree and had not committed any crime. The child was yelling “Daddy, help,” and could not be mistaken for an adult.
39. The supervising officer, Sergeant Gomez, was on the scene and did not make any effort to intervene and stop the assault. Stewart and/or Roark cornered and hit Dymond in the back of her head with a flashlight, hit her neck, throat, slapped her across the face (Stewart), and yelled at her to get off the tree. They did not stop when Wilfred
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Milburn informed them she was their daughter and a twelve (12) year old. Sergeant Gomez still did not intervene, he in fact joined in.
40. Stewart and Roark and Gomez denied the parents’ request to comfort their child. They used unreasonable and excessive force to unlawfully detain Dymond. Dymond Milburn suffered from pain from injuries to the back of the head, lower back, sprained wrist with abrasions; throat, neck and face pain. Plaintiff contends this conduct was unreasonable and unlawful considering the officers did not have probable cause to believe she committed a crime, and even if they did, the force was excessive.
Illegal Arrest and Detention
41. The actions of the Defendant Officers on August 22, 2006, also constitute the state law claims of illegal arrest and detention. The seizure and detention were unreasonable and without probable cause. The defendants willfully seized and detained Plaintiff Dymond Milburn, the detention was without Plaintiff’s consent, and without legal authority or justification. The subsequent warrantless arrest of Dymond Milburn was also unlawful.
42. Defendants acted intentionally or recklessly, their conduct was extreme and outrageous, their conduct was directed at Plaintiff (Dymond Milburn), and their conduct
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caused Plaintiff physical injury and severe emotional distress.
43. The subsequent warrantless arrest of Plaintiff on September 15, 2006, at her school, was also illegal, and deprived Plaintiff Dymond Milburn of her known constitutional rights to be free from unreasonable seizure and detention. The arrest was authorized by Defendant Gomez, and was carried out by Officer Clemente Garcia and Defendant Officer Stewart.
Prayer for Damages
44. But/for the offending events in question, Plaintiff suffered injury. Plaintiff sues in the following respects, to-wit:
A. As a direct and proximate result of defendants’
actions, as described above, Plaintiff Emily
Milburn, in her individual capacity, suffered
severe mental pain and suffering since the
perception of the occurrence made the basis of
this suit and of the injuries and harm sustained
by her daughter, Dymond Milburn.
B. Dymond Milburn sues for compensatory damages severe embarrassment, fear, anxiety, loss of sleep, and emotional distress, including a diagnosis of Post-Traumatic Stress Disorder,
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continuing nightmares and flashbacks, loss of appetite, loss of normal functioning, and negative effect on school grades due to trouble concentrating in class, all associated with the beating suffered at the hands of the law enforcement officers);
B. Compensation for the physical injuries suffered, including contusions to her head, abrasions, injury, and bruising to her body and appendages;
C. Actual damages including medical bills incurred,
attorneys’ fees (criminal and civil), bonding fees and losses associated with the incident;
D. Exemplary damages directed against Defendant(s);
E. Pre-judgment and post-judgment interest;
F. Reasonable and necessary attorneys’ fees under 42 U.S.C. § 1988; and
G. Costs of suit and other equitable relief to which Plaintiff may be deemed entitled under law.
I. Declaratory judgment relief in the form of a declaration that the conduct in question violated Plaintiff’s known constitutional rights and that the acts in question were unconstitutional and violative of the law of the United States.
DATE: December 2, 2008.
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Respectfully submitted,
/S/ ANTHONY P. GRIFFIN _____________________________
ANTHONY P. GRIFFIN
ATTORNEY-IN-CHARGE
A GRIFFIN LAWYERS
1115 MOODY
GALVESTON, TEXAS 77550
409.763.0386
1.800.750.5034
FACSIMILE NO. 409.763.4102
STATE BAR NO. 08455300
FEDERAL I.D. NO. 3746
ATTORNEYS FOR PLAINTIFF
EMILY MILBURN INDIVIDUALLY AND AS NEXT FRIEND OF DYMOND L. MILBURN
JURY TRIAL DEMANDED
c:word.milburn.emily.original.complaint[first.amended].2006.2901.
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CERTIFICATE OF SERVICE
This is to certify that on this the 2nd day of December, 2008, a true and correct copy of the Plaintiff’s First Amended Complaint was forwarded to opposing counsel consistent with the rules of the Court surrounding electronic filing and by certified mail, if applicable:
NORMAN RAY GILES
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS, AND MARTIN
1200 SMITH ST
SUITE 1400
HOUSTON, TEXAS 77002
713.658.2553 (FAX)
/s/ ANTHONY P. GRIFFIN
________________________
ANTHONY P. GRIFFIN

 

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