Robert B.

Sykes (#3180)
C. Peter Sorensen (#16728)
Christina D. Isom (#17244)
SYKES MCALLISTER LAW OFFICES, PLLC
311 S. State Street, Suite 240
Salt Lake City, Utah 84111
Telephone No. (801) 533-0222
bob@sykesmcallisterlaw.com
pete@sykesmcallisterlaw.com
christina@sykesmcallisterlaw.com
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

ATONIO SIVATIA, through his Guardian &

Mother Nonnie L. Masaniai Pea, and NONNIE
COMPLAINT
L. MASANIAI PEA,
AND
JURY DEMAND
Plaintiffs,

vs.

AMMON FOX, JAMES WILLIAMS, NICK

Civil No. ______________________
GREEN, and CHAD FAUBION, West Valley
City Police Officers; DOE DEPUTIES 1-10;
and WEST VALLEY CITY, by and through its
Judge ________________________
Police Department,

Defendants.

Plaintiffs Atonio Sivatia, through his Guardian and Mother Nonnie L.

Masaniai Pea, and Nonnie L. Masaniai Pea through counsel of record, complain against

Defendants as follows:

PRELIMINARY STATEMENT

The following allegations are based upon the undersigned’s understanding

of the information presently available. This is a civil rights action in which the Plaintiffs

1
seek relief for Defendants' violation of their rights guaranteed by the United States

Constitution, specifically the Fourth and Fourteenth Amendments. These rights are further

secured by the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983 and § 1988. This

action also seeks relief under the law, statutes and Constitution of the State of Utah,

specifically Article I, §§ 7, 9 and 14.

JURISDICTION AND VENUE

1. This action arises under the United States Constitution and federal

law, particularly under the provisions of the Fourth and Fourteenth Amendments to the

Constitution of the United States, and 42 U.S.C. §§ 1983 and 1988.

2. This action also arises under the Constitution of the State of Utah

Article I, §§ 7, 9 and 14.

3. This action seeks redress for violations of the civil rights laws of the

United States, and jurisdiction is therefore invoked pursuant to 28 U.S.C. §1343 and 42

U.S.C. §1983.

4. As to the State Constitutional claims, this Court’s supplemental

jurisdiction is invoked under 28 U.S.C. §1367.

5. The claims made in this Complaint occurred and arose in the State of

Utah, in this District. Venue for the federal claims is therefore proper under 28 U.S.C. §§

1391 and 1331. Venue for the State claims is proper under 28 U.S.C. §1367.

6. Plaintiffs are seeking damages pursuant to the claims for relief

specified below in amounts to be proved at trial.

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 7. This Court has authority to award costs and attorney fees pursuant to

42 U.S.C. §1988, and pursuant to the Court’s inherent power under State law.

8. This action also seeks redress for violations of Plaintiffs’

constitutional rights secured by the Utah Constitution. This Court further has pendent

jurisdiction over any and all State claims.

PARTIES

9. Plaintiff Atonio Sivatia (“Atonio”) is a resident of Riverton, Salt

Lake County, Utah.

10. Plaintiff Nonnie L. Masaniai Pea (“Nonnie”) is a resident of Woods

Cross, Davis County, Utah. Nonnie is Atonio's mother and has been legally appointed by

the Court to act as Atonio's Guardian and Conservator.

11. Defendant Ammon Fox (“Fox”) was at all relevant times herein an

officer with the West Valley City Police Department, a department of West Valley City,

operating in the course and scope of his employment, and under the color and guise of the

laws of the State of Utah.

12. Defendant Chad Faubion (“Faubion”) was at all relevant times

herein an officer with the West Valley City Police Department, a department of West

Valley City, operating in the course and scope of his employment, and under the color and

guise of the laws of the State of Utah.

13. Defendant James Williams (“Williams”) was at all relevant times

herein an officer with the West Valley City Police Department, a department of West

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Valley City, operating in the course and scope of his employment, and under the color and

guise of the laws of the State of Utah.

14. Defendant Nick Green (“Green”) was at all relevant times herein an

officer with the West Valley City Police Department, a department of West Valley City,

operating in the course and scope of his employment, and under the color and guise of the

laws of the State of Utah.

15. Defendants Doe Officers 1-10 were at all relevant times herein

officers of the West Valley City Police Department, a department of West Valley City,

operating in the course and scope of their employment, and under the color and guise of

the laws of the State of Utah. The specific identities are presently unknown, but upon

positive identification they will be properly served with process, and their individual names

will be added to this Complaint in accordance with the applicable federal rules.

16. Defendant West Valley City is a political subdivision of the State of

Utah. West Valley City has a law enforcement branch known as the West Valley City

Police Department (“WVCPD”) which is authorized to operate by West Valley City and

the State of Utah. West Valley City funds and supervises the WVCPD and is legally

responsible for the acts of its employee officers that are within the course and scope of their

employment. West Valley City, through the actions of WVCPD Officers Fox, Faubion,

Williams, Green, and Does 1-10, is a “person” within the meaning of 42 U.S.C. § 1983.

Officers Fox, Faubion, Williams, Green, and Does 1-10 were at all times state actors.

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 FACTUAL ALLEGATIONS

17. The incident in question occurred early in the morning of December

6, 2020. Some of the background facts occurred late in the evening of December 5, 2020.

18. Early in the morning of December 6, 2020, WVCPD received a call

from an apartment complex at approximately 4000 South and Redwood Road

(“Complex”). The caller reported an individual was causing a commotion in the parking

lot.

19. Fox responded to the call and arrived at the Complex to find an

individual yelling and screaming.

20. The individual yelling and screaming was Atonio Sivatia.

21. Atonio had broken a window at the apartment complex.

22. When Atonio saw Fox, he began to walk away, toward where the

parking lot exited onto Redwood Road.

23. Fox began to chase after him.

24. Atonio began to cross Redwood Road.

25. Just after midnight, Fox fired his taser and struck Atonio in the back.

26. Atonio immediately dropped to the road on his back, arms outward,

in the inside southbound lane of Redwood Road, with his head pointed north, so he could

not see oncoming traffic.

27. Atonio said "I'm sorry" to Fox for walking away.

28. Fox never warned Atonio before tasing him.

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 29. Once Atonio was on the road, Fox ordered him to stay where he was.

30. Atonio complied with the orders from Fox to stay in the traffic lane

(on his back, head to the north).

31. Atonio was unarmed.

32. Atonio made no threats to Fox or any other person.

33. Atonio had initially walked away and disobeyed orders by Fox, but

had taken no hostile or threatening actions as he walked, and had made no threats.

34. Atonio presented no risk of harm or serious injury to Fox, any other

officer, or to any citizen.

35. At the point that Atonio was on his back in the inside lane of traffic

on Redwood Road, he had ceased any effort to walk away.

36. At that point, any potential threat Atonio posed was completely

subdued and abated.

37. Fox ordered Atonio to stay where he was in the southbound inside

lane of traffic, on his back with his head to the north.

38. Atonio obeyed Fox.

39. The way Fox forced him to lay in the road with his head to the north

in the inside southbound lane, prevented Atonio from seeing on-coming traffic coming

toward him.

40. Atonio was at all times completely compliant and remained on the

road following Fox's directions.

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 41. Fox knew cars were driving on the dark road just after midnight and

knew that Atonio could potentially be struck.

42. Fox knew that on-coming motorists would be unable to see Atonio

lying flat on the road in the dark.

43. Any reasonable Officer would have known with certainty that

compelling a suspect, like Atonio, to lie on his back in a lane of highspeed traffic on

Redwood Road at midnight would subject that suspect to a very high risk of catastrophic

injury from being struck by a motorist who would not expect to encounter a person lying

on the road at that time of night.

44. Tasing causes the tased individual to lose all muscle control and fall

in the spot where he is tased, and remain immobile for 30-60 seconds.

45. The WVCPD policy manual and department training prohibit tasing

of someone at a location where the tased person would be at risk for harm from traffic or

other causes.

46. Any objectively reasonable officer would have known not to tase a

subject at a location where it would put the subject at risk or extreme risk of harm such as

the risk of being struck by a vehicle.

47. Tasing is viewed by WVCPD policy and Tenth Circuit law as the use

of extreme force.

48. Tasing is only permitted under WVCPD policy and training where the

suspect is a severe threat to himself or others.

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 49. Tasing is prohibited under WVCPD policy for minor offenses.

50. Prior to Fox's tasing of Atonio, Atonio had committed only very

minor offenses, and may have committed no offenses at all.

51. Fox knew that tasing Atonio under the circumstances violated

WVCPD policy as well as his police training but chose to tase Atonio anyway.

52. Fox's actions were more than just negligent but were reckless, grossly

negligent and extremely outrageous under the circumstances.

53. Just after Atonio was tased and had dropped to the ground, one car

barely missed striking Atonio but swerved at the last minute into the number two

southbound lane around Atonio.

54. Fox acted recklessly in several aspects, but he was particularly

reckless when he continued to order Atonio to stay on the road and not move even though

he could see that traffic was not blocked and was moving toward Atonio.

55. The roadway was dark, and not well lit.

56. Redwood Road is a major thoroughfare that accommodates heavy

traffic at all hours.

57. It was the early morning hours, just past midnight, and drivers could

not easily see Atonio on the roadway.

58. Atonio was complying with Fox's orders to stay on the ground and

was calm while talking to Fox.

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 59. Fox never allowed Atonio to get up and move off the dark roadway

to safety.

60. Atonio was detained but was never told he was under arrest.

61. Fox knew that cars were driving on the dark roadway at high speeds.

62. Fox knew that keeping Atonio on his back in the roadway put Atonio's

life and safety in grave danger.

63. After the tasing, Fox ordered Atonio to remain where he was in Lane1

of the southbound traffic for many seconds before Atonio was struck by a vehicle.

64. Fox could have easily, at any time, directed Atonio to move onto the

shoulder of the road.

65. Fox was aware of the grave danger because he could see multiple

vehicles coming toward the point where Atonio lay, some of them barely missing Atonio.

66. Shortly after Fox tased Atonio, Officer Williams arrived at the scene

and parked a short distance to the south of Fox, while Atonio lay the middle turning lane.

67. Williams' emergency lights were on.

68. Williams’ headlights were on, pointing northward, such as to create a

blinding effect on traffic headed south in Lane 1.

69. From his vehicle Williams could see Fox, as well as Atonio on the

ground talking to Fox.

70. Williams observed that Atonio was being fully compliant with Fox’s

demands.

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 71. Williams did not feel the need to rush because Atonio was obviously

compliant with Fox's commands.

72. Atonio was not handcuffed.

73. Williams got out of his vehicle and approached Atonio to handcuff

him.

74. Williams stopped to put on his gloves.

75. Williams could and did perceive the risk of grave danger that Atonio

could be hit by a vehicle and be seriously injured or killed, but ignored the risk and did

nothing.

76. Williams had an obligation to intervene to prevent harm and civil

rights violations to Atonio, but he failed to take any action to protect Atonio from harm

that was very predictable.

77. Williams had many seconds during which he could have easily

intervened to prevent injury to Atonio.

78. At this critical moment, Williams and Fox were 12-15 feet away from

Atonio to the south. The two officers were discussing next steps in the arrest of Atonio.

79. Neither Fox or Williams had placed a vehicle in the southbound

number 1 lane to block traffic from approaching and possibly hitting Atonio while he was

laying supine, head forward, complying with Fox’s directions to stay on the ground.

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 80. WVCPD policy and training required Fox and Williams to place a

blocking vehicle to protect someone like Atonio from being hit. They should have done

this.

81. The officers took no precaution whatsoever to block southbound

traffic from hitting Atonio.

82. While Fox was waiting, Williams began walking toward Atonio. At

that moment, a white sedan, traveling southbound in the number 1 lane, came toward

Atonio and the officers at a high rate of speed.

83. The driver of the vehicle did not see Atonio and hit him.

84. The undercarriage of the vehicle caught Atonio and dragged him

approximately 15 feet toward Fox.

85. When the vehicle hit Atonio it only stopped because it became stuck

on top of Atonio after dragging him.

86. Fox saw the incident and began running toward the white vehicle

trying to get it to stop, but it was too late.

87. Fox was also struck by the front bumper of the white sedan as it came

to a stop on top of Atonio. Fox was knocked to the ground but was not seriously injured.

88. It is unclear when Faubion and Green arrived on scene.

89. If Faubion and Green were present at the scene when the white sedan

hit Atonio, and had the ability to prevent the incident, they are liable for failure to take

steps to protect Atonio from violations of his rights, as alleged herein.

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 90. When the white sedan finally came to a stop, Atonio was still pinned

under the car after being dragged.

91. Atonio's legs were pointing southbound, and the car’s front axle was

resting on his head and chest.

92. Once the white sedan was stopped, Williams rushed to the driver’s

door and pounded on the window ordering the driver to exit the car.

93. Williams opened the door and pulled the driver from the car.

94. As soon as the driver’s seat was open, Faubion jumped into the car

and drove in reverse in an attempt to get the car off Atonio's head and torso.

95. Fox and Green pushed on the front bumper as Faubion reversed in

order to get the car off of Atonio.

96. The Officers were able to back the car off of Atonio.

97. Once Atonio was out from under the vehicle, Faubion and Green

traded off performing CPR on Atonio.

98. The driver of the vehicle indicated she was a nurse, and also helped

perform CPR until emergency medical support arrived.

99. The driver of the white sedan had been drinking and had blood drawn

for testing.

100. The driver was not cited for DUI on the scene.

101. It was foreseeable to Defendant Officers that leaving Atonio in the

middle of the dark, busy roadway could result in him being hit by a car and injured.

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 102. Officers never placed a blocking vehicle in the southbound lanes to

alert drivers of Atonio laying, by police command, in the middle of the road.

103. Atonio has suffered extreme life altering injuries as a result of the

Officers' recklessness in leaving him lying in the roadway, forbidding him from moving,

and not blocking the lane of traffic.

104. Atonio has undergone multiple surgeries since being hit by the car

and will likely have to have many follow-up surgeries in the years to come.

105. Atonio is no longer able to walk.

106. Atonio is no longer able to talk.

107. Atonio can no longer move his arms normally.

108. Atonio can no longer move his body normally.

109. Atonio can no longer bathe himself or care for his personal hygiene.

110. Atonio can no longer prepare food for himself.

111. Atonio can no longer hear well.

112. Atonio can no longer carry on a conversation.

113. Atonio is unable to concentrate or focus on what is happening around

him.

114. Atonio does not remember where he is or what day of the week it is.

115. Atonio is not able to discern when he is having an emergency.

116. Atonio no longer has the physical or mental ability to care for himself

in any capacity.

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 117. Over the past twelve months, Atonio has been determined to have

sustained a very serious traumatic brain injury (TBI).

118. Atonio is severely functionally limited as a result of the reckless

actions of Officers Fox, Williams, and Does 1-10.

119. Because of the consequences of the Officers' recklessness and

unconstitutional use of force as set forth above, Atonio has been rendered permanently and

totally disabled. Among other things, Atonio can no longer:

a. Perform any of his own ADL (activities of daily living);

b. Receive and evaluate information;

c. Make and communicate decisions;

d. Work in any capacity; and

e. Provide for necessities such as food, shelter, clothing,

healthcare, or safety requirements.

120. Nonnie L. Masaniai Pea ("Nonnie") is Atonio's mother and has been

appointed by the Court as his Guardian and Conservator.

121. Nonnie has lost the relationship and society of her only son.

122. Atonio was very close to his mother and three older sisters. He can no

longer have a relationship with them because of the recklessness of the Defendants on

December 6, 2020.

123. Nonnie has suffered the loss of relationship and companionship of her

only son.

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 FIRST CAUSE OF ACTION

~ Excessive Force ~

Violation of the Fourth and Fourteenth Amendment

Against Fox in his Individual and Representative Capacities

Cognizable Under 42 U.S.C. § 1983

124. We incorporate all other paragraphs herein.

125. The Supreme Court has outlined three factors to evaluate

reasonableness of force under the Fourth Amendment: (1) the severity of the crime at issue;

(2) whether the suspect poses an immediate threat to the safety of the officers or others;

and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by

flight at the precise moment that force is used. Graham v. Connor, 490 U.S. 386 (1989).

126. The proper focus in determining the reasonableness of force used is

on the events immediately confronting an officer when he or she decided to use force.

127. Force is not reasonable when a suspect is non-violent, not resisting,

not fleeing, or poses no threat. Force is not permitted at all when there is no need to use

force.

128. Taser use "unquestionably 'seizes' the victim in an abrupt and violent

manner." Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010). The nature

and quality of "the intrusion into the interest[]" of a citizen who is tased is "quite severe."

Id.

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 129. A police officer violates the Fourth Amendment if he uses a "[t]aser

against a non-violent misdemeanant who appeared to pose no threat and who was given no

warning or chance to comply with the officer's demands." Cavanaugh, 625 F.3d at 666.

130. Although use of a taser is certainly preferable to deadly force, it is still

a harsh method to subdue a person. A taser, by design, delivers an intense shock that causes

great pain and is intended to disable the suspect. Finlinson v. Millard County, 2018 WL

5438436, *16 (D. Utah 2018).

131. Officer Fox's use of a taser against Atonio was unreasonable and

excessive.

132. Atonio had committed no serious crime.

133. At the time Fox followed and tased Atonio, he had at most, 1) walked

away from the scene of an argument; 2) possibly broke a window; and/or 3) not stopped

when Officer Fox told him to do so. These are all minor misdemeanors under Utah law.

134. Fox recklessly, deliberately, and needlessly chased Atonio onto a

busy, dark highway for no substantial reason.

135. Fox needlessly escalated the encounter.

136. By escalating the encounter, Fox created, in his own subjective

thinking, a justification for his ultimate use of unconstitutional force.

137. Fox knew he could easily obtain Atonio's name and address from

witnesses at the party and arrest him later without putting anyone at risk from high speed

traffic on Redwood Road.

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 138. Atonio had done nothing serious enough to require an immediate

arrest. Among other things:

a. Atonio's "crime[s]" were minor at most;

b. Atonio had no weapon;

c. Atonio had made no threats to citizens or officers;

d. there was no immediate or imminent threat of harm to any

citizen or officer if Atonio was not immediately apprehended;
and

e. Atonio's "escape" was not permanent but was temporary at

best.

139. Fox never warned Atonio he was going to be tased if he did not

comply with his commands.

140. At the precise moment Fox used force and deployed his taser, Atonio

was, at most, a non-complying misdemeanant.

141. Atonio never made verbal or physical threats, toward any Officers at

any time.

142. Prior to Fox’s use of force, no one on the scene had alleged Atonio

was in possession of a weapon of any kind.

143. At the precise moment Fox used force, Atonio possessed no weapon.

144. Fox’s subjective views of the encounter are irrelevant in the analysis

of whether or not his use of force was reasonable.

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 145. What is important is how an “objectively reasonable” officer would

have addressed the situation.

146. Fox’s use of force was not objectively reasonable.

147. Fox violated Atonio’s federal constitutional rights to be free from

excessive force.

148. An objectively reasonable officer on the scene would have known that

tasing a person in the back, without warning, in the middle of a dark, busy highway,

constituted a serious, outrageous, and unnecessary use of force.

149. It is clearly established and well known to all reasonably trained,

police officers that an individual’s constitutional rights are violated by the unreasonable

use of a taser in the manner in which it was deployed in this case.

150. In December 2020, every reasonable police officer in Utah would

have been familiar with the law set forth in Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)

with regard to a state-created danger. Uhlrig indicated that “[t]he classic case of state actors

creating a danger so as to give rise to §1983 liability is Wood v. Ostrander, where police

officers placed plaintiff in danger by impounding her car and abandoning her in a high

crime area at 2:30 a.m., thereby distinguishing Wood from the general public and

triggering a duty of the police to afford her some measure of peace and safety.” Uhlrig, 64

F.3d at 572 (cleaned up; citing Wood, 879 F.2d 583, 589-90 (9th Cir. 1989), cert. den., 498

U.S. 938 (1990)). Fox would have known that he could not leave a detainee in a dangerous

or a precarious situation that would deprive him of his rights under the Fourth Amendment.

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 151. In December 2020, every reasonable police officer in Utah would

have been aware of the 10th Circuit case of Lee v. Tucker, 904 F.3d 1045 (10th Cir. 2018).

In Lee, sheriff’s deputies used a stun gun (taser) on Lee’s back for an alleged misdemeanor

domestic violence crime that involved arguing, intoxication, and Lee shoving his wife. Id.

at 1147-48. The court held that “the law was clearly established that an officer may not use

a Taser against a non-violent misdemeanant who appeared to pose no threat and who was

given no warning or chance to comply with the officer’s demands.” Id. at 1150 (cleaned

up and punctuation omitted). Fox would have known in December 2020 that he could not

use a taser on Atonio because he was, at most, a non-violent misdemeanant who posed no

threat.

152. In December 2020, all reasonable police officers in Utah would have

been aware of the 10th Circuit decision in Emmett v. Armstrong, 973 F.3d 1127 (10th Cir.

2020). Emmett had been drinking in a bar in a small Wyoming town, got in a fight, and

then initially ran from Officer Armstrong. Officer Fox and the other Defendants would

have known that Atonio could not be tased unless "the officers [or others] were in danger

at the precise moment that they used force.” Emmett, 973 F.3d. at 1136 (citing Pauly v.

White, 874 F.3d 1197, 1219 (10th Cir. 2017)).

153. Officer Fox, acting under color of statute, regulation, custom, and/or

usage subjected Atonio to unnecessary, unreasonable, and excessive force, by unlawfully

tasing him in the back without warning.

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 154. Fox is not entitled to qualified immunity based on his unlawful and

illegal use of excessive force.

155. Officer Fox's use of unreasonable and excessive force on Atonio

directly and proximately caused his injuries and damages set forth herein.

156. The conduct of Fox and Williams warrants the imposition of punitive

damages as may be allowed by law.

SECOND CAUSE OF ACTION

~ State Constitutional Claims ~

Violation of the Utah Constitution

Against Officers Fox and Williams in Their Individual Capacities

Cognizable Under Article 1, Sections 7, 9, and 14 of the Utah Constitution

157. We incorporate all other paragraphs herein.

158. Article I of the Utah Constitution provides protection of basic rights

for Utah citizens, as follows:

a. Against illegal seizure – Section 7

b. Against excessive force and unnecessary rigor – Section 9
c. Against denial of due process – Section 14

159. Fox flagrantly violated Atonio’s Utah Constitutional rights when he

illegally seized him.

160. Fox flagrantly violated Atonio’s Utah Constitutional rights when he

used excessive force in unreasonably tasing him in the back, without warning.

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 161. Fox and Williams flagrantly violated Atonio’s Utah Constitutional

rights by denying him due process.

162. The Utah Constitution Article I, Section 9 states:

Persons arrested or imprisoned shall not be treated with unnecessary rigor.

163. Fox and Williams flagrantly violated Atonio’s Utah Constitutional

right to be free from unnecessary rigor.

164. The Utah Supreme Court has clarified the "unnecessary rigor" clause

of Article 1 §9 of the Utah Constitution as follows:

The unnecessary rigor clause of the Utah Constitution protects persons

arrested or imprisoned from the imposition of circumstances on them during
their confinement that demand more of the prisoner than society is entitled
to require. The restriction on unnecessary rigor is focused on the
circumstances and nature of the process and conditions of confinement.

Dexter v. Bosko, 2008 UT 29, ¶17, 184 P.3d 592 (emphasis added). The Court clarified:

"This may include being unnecessarily exposed to an increased risk of serious harm." Id.

at ¶19 (emphasis added).

165. Atonio was unnecessarily exposed to an increased risk of serious

harm when he was tased on a heavily traveled road and ordered to remain there, where he

could not see oncoming traffic, and where no blocking vehicle protected him.

166. He was not only exposed to that risk, but he suffered directly from it,

resulting in catastrophic, life changing permanent injuries.

167. The Utah Supreme Court has held:

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 We have held that the last sentence [of Article I, Section 9] makes section 9
broader than its federal counterpart. See Bishop I, 717 P.2d at 267. Article
I, section 9 is also a self-executing provision that prohibits specific evils that
can be remedied without implementing legislation.

State v. Lafferty, 2001 UT 19, ¶73, 20 P.3d 342, 365 (emphasis and bracketed text added).

168. Fox was keenly aware that Atonio was detained in the middle of a

dark, busy roadway and that traffic was not blocked in the lane in which Atonio was laying.

169. Fox witnessed one car narrowly miss hitting Atonio, but the car

swerved around him a the last second.

170. This narrow miss put Fox on further notice of the very real danger

Atonio was facing.

171. Fox and Williams knew traffic was not blocked and they could both

see cars on the roadway heading toward Atonio, but still took no steps to block the lane of

traffic north of Atonio to protect him from oncoming traffic.

172. Pursuant to the unnecessary rigor clause of Article I, § 9 of the Utah

Constitution, Defendants had a duty to ensure that Atonio was not unnecessarily exposed

to an increased risk of serious harm.

173. Defendants breached this duty by knowingly and intentionally leaving

Atonio laying in the lane of oncoming traffic on a dark, busy roadway without blocking

the lane, and by ordering him to stay there.

174. Defendants have long been aware that there are specific well-

established protocols in West Valley City which are used to detain individuals safely.

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 175. Defendants knowingly and willfully did not follow the established

protocols to detain individuals safely.

176. Because Defendants did not follow protocol in safely detaining

Atonio, they unnecessarily exposed him to a significantly higher risk of injury and

accordingly "demand[ed] more of the prisoner than society is entitled to require." Dexter,

at ¶17 (brackets added).

177. Defendants' conduct exposed a detained Atonio to grave harm on a

dark, busy highway, thus subjecting him to unnecessary rigor.

178. Any reasonable official in the position of each Defendant would have

understood that not blocking the oncoming traffic, or having the compliant Atonio follow

them to the sidewalk, would expose him to an increased risk of harm, which occurred in

this case.

179. The Utah Supreme Court has held:

In contrast, to recover monetary damages for a violation of the Utah

Constitution, a plaintiff must demonstrate that the provision violated by the
defendant is self-executing and then must establish three elements: (1) the
plaintiff "suffered a flagrant violation of his or her constitutional rights;" (2)
"existing remedies do not redress his or her injuries;" and (3) "equitable
relief, such as an injunction, was and is wholly inadequate to protect the
plaintiff's rights or redress his or her injuries."

Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶48, 250 P.3d 465 (citing Spackman ex

rel. Spackman v. Bd. Of Educ., 2000 UT 87, ¶¶18,23-25, 16 P.3d 533).

180. Atonio Sivatia suffered a flagrant violation of his rights under the

Utah Constitution, Article I, § 9, when Defendants knowingly and willfully violated

23
protocol requiring them to safely detain Atonio, and instead left him lying in the middle of

a dark roadway where oncoming traffic was coming, and failed to block traffic. The correct

protocol would have necessitated Atonio being moved from the roadway and/or blocking

the lane of traffic with a police vehicle.

181. Defendants had no reasonable justification for leaving Atonio laying

in the middle of a busy, dark roadway at midnight without blocking traffic.

182. There is no equitable relief that would adequately redress Atonio's

loss, nor are there existing remedies that would redress Nonnie's loss since Atonio's

injuries.

183. As a direct and proximate result of Defendant's recklessness in

leaving Atonio in the middle of a dark, busy roadway without blocking traffic, Atonio was

hit by a car and has suffered catastrophic mental and physical injuries which have changed

his life forever.

184. The Utah Constitution, Article I, Section 7 states:

No person shall be deprived of life, liberty, or property without due process

of law.

185. Atonio suffered a flagrant violation of his constitutional right not to

be deprived of his life without due process when Defendants knowingly and willfully left

him in the middle of a dark, busy roadway at night without blocking oncoming traffic.

186. Defendants' recklessness in not blocking the lane of traffic or moving

Atonio to the side of the road, resulted in catastrophic, life altering injuries.

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 187. As a direct and proximate result of Defendants' flagrant violation,

Atonio was run over by a car, resulting in catastrophic, life changing injuries.

188. No other remedy for Atonio’s illegal seizure and unconstitutional

injuries exist.

189. The conduct of Fox, Williams and the Doe Officers 1-10 warrants the

imposition of damages and punitive damages as may be allowed by law and as alleged

herein.

THIRD CAUSE OF ACTION

~ Unlawful or Deficient, Policies, Procedures and/or Protocols ~

Against West Valley City through its Police Department Relating to Defective Policies,
Customs or Practices

Cognizable Under 42 U.S.C. §1983

190. Plaintiff incorporates by reference all other allegations herein.

191. The West Valley City Police Department (WVCPD) is an authorized

department or division of West Valley City. West Valley City is therefore responsible for

the actions of WVCPD Officers.

192. After the tasing, Officers Fox, and Williams wrongfully, and

unreasonably left Atonio laying in the middle of a dark, busy highway at night.

193. This resulted in Atonio being run over by a car wherein he sustained

profound catastrophic life altering injuries resulting in permanent, total disability as well

as a deprivation of his constitutional rights and loss of liberty.

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 194. At all relevant times herein, West Valley City was the employer,

operator, and/or administrator of the WVCPD.

195. West Valley City, through WVCPD, had a duty to create, adopt, and

promulgate, implement, enforce, revise, and/or update lawful policies, procedures, and/or

protocols on the legal and safe tasing and detention of individuals.

196. West Valley City, through WVCPD, knowingly and recklessly failed

to create, adopt, promulgate, implement, enforce, revise, and/or update lawful policies,

procedures, and/or protocols regarding tasing, arrest, excessive force, and detention,

specifically about when such tactics and procedures are permitted by law and how they

were to be conducted.

197. West Valley City, through WVCPD, failed to create, adopt,

promulgate, implement, enforce, revise and/or update lawful policies, procedures and/or

protocols ("policies") pertaining to tasing and the safe detention of individuals.

198. The failure to have and utilize such policies proximately caused

Officers to tase Atonio in the back, without warning, at a dangerous location under

dangerous circumstances.

199. West Valley City’s failures as described above, caused Defendants to

leave Atonio laying in the southbound number 1 lane of traffic on a busy, dark roadway,

resulting in catastrophic injuries and loss of constitutional rights.

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 200. The above-described actions, or inactions of West Valley City,

through the WVCPD, constitute willful and wanton misconduct and heedless disregard to

the rights, health, well-being, and safety of Utah citizens, particularly Atonio. Such

heedless disregard warrants the imposition of punitive damages.

201. Plaintiffs have been damaged as set forth herein.

202. Plaintiffs demand judgment against West Valley City for

compensatory damages, for punitive damages, for costs and attorney fees, and for such

other relief as this Court deems just and proper, and as may be allowed by law.

FOURTH CAUSE OF ACTION

~ Failure to Train and/or Supervise ~

Against West Valley City through the WVCPD in their Official Capacity

Cognizable Under 42 U.S.C. § 1983

203. Plaintiffs incorporate by reference all other allegations herein.

204. The action of Officers Fox and Williams toward Atonio were pursuant

to, and consistent with, established policies, practices, and/or customs of Defendant West

Valley City, through the WVCPD, for which West Valley City is responsible.

205. WVCPD had a practice, policy, or custom of arming police officers

with tasers and condoning their use without requiring warning, and without providing

proper training and/or supervision regarding their safe, reasonable, and appropriate use in

situations like the one Fox faced here.

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 206. The actions of Officers Fox, Williams, and Doe Officers 1-10 show a

lack of training in safely detaining individuals.

207. The lack of proper training and supervision caused Officer Fox and

other Defendants to unreasonably and improperly tase Atonio and use unreasonable and

excessive force to detain him, directly resulting in catastrophic injuries and other damages

described herein.

208. The failure of West Valley City, through WVPD, to properly train and

supervise Officers Fox and Williams resulted in their reckless tasing of Atonio and leaving

him in the middle of a busy dark roadway where he was run over by a car.

209. Had there been proper training Atonio never would have been tased

on a busy roadway, and Williams or some other Officer would have blocked the

southbound number 1 lane of traffic where Atonio was laying.

210. The failure to train and supervise Fox and Williams caused their

reckless conduct which resulted in catastrophic injuries to Atonio.

211. Defendant West Valley City, through WVCPD, was deliberately

indifferent toward the proper training, arming, and supervision of its police officers.

212. The actions of West Valley City, through its WVCPD, were the

proximate cause of Plaintiffs’ injuries and damages, including Atonio's catastrophic, life

altering injuries and damages, as well as his pain and suffering.

213. As a result of WVCPD's actions, and in order to remedy this important

issue of public concern, Plaintiffs have had to retain legal counsel.

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 FIFTH CAUSE OF ACTION

~ State Created Danger ~

Against all Defendants

214. Plaintiffs incorporate by reference all other paragraphs herein.

215. "Generally, state actors are liable only for their own acts, and not the

violent acts of third parties." Armijo by and through Chavez v. Wagon Mound Public

Schools, 159 F.3d 1253, 1260 (10th Cir. 1998) (quoting Liebson v. New Mexico

Corrections Dep't, 73 F.3d 274, 276 (10th Cir. 1996)). However, there are two exceptions

to this general rule:

The first exception, known as the special relationship doctrine, "exists when
the state assumes control over an individual sufficient to trigger an
affirmative duty to provide protection to that individual." The second
exception, sometimes referred to as the "danger creation" theory, provides
that the state may also be liable for an individual's safety "if it created the
danger that harmed the individual."

Armijo, 159 F.3d at 1260 (emphasis added) (quoting Uhlrig v. Harder, 64 F.3d 567, 572

(10th Cir. 1995) and DeShaney v. Winnebago Co. Dep't of Social Servs., 489 U.S. 189,

199-200 (1989)).

216. Utah Courts, as a matter of public policy, have said that

"governmental actors should be answerable in tort when their negligent conduct causes

injury to persons who stand so far apart from the general public that we can describe them

as having a special relationship to the governmental actor." Francis v. State Division of

Wildlife Resources, 2013 UT 65, ¶31, 321 P.3d 1029.

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 217. In Francis, the Utah Supreme Court recognized four instances where

a special relationship would arise:

(1) by statute intended to protect a specific class of persons of which the

plaintiff is a member from a particular type of harm; (2) when a government
agent undertakes specific action to protect a person or property; (3) by
governmental actions that reasonably induce detrimental reliance by a
member of the public; and (4) under certain circumstances, when the
agency has actual custody of the plaintiff or of a third person who causes
harm to the plaintiff.

Francis, at ¶27 (emphasis added).

218. Here, Defendant Officers undertook specific actions to induce

detrimental reliance by Atonio that he would not be run over by a car while being detained

in the middle of the dark roadway.

219. Additionally, the Defendants had actual custody of Atonio at the time

he was run over because he had complied with commands to stay down in the middle of

the road.

220. Defendants are responsible for the safety of pretrial detainees.

221. Defendants had a duty to Atonio to keep him safe from unreasonable,

foreseeable harm that can be caused by leaving him lying in the middle of a dark, road.

222. Defendants failed to take even rudimentary steps to make Atonio safe

such as getting him out of the lane of traffic or blocking the lane of traffic in which he was

lying.

223. Defendants' conduct was egregious and outrageous.

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 224. Defendants' conduct evidenced extreme carelessness and recklessness

in needlessly exposing Atonio to such a dangerous condition, with obvious serious and/or

potentially fatal consequences.

225. As a direct and proximate cause of Defendants' breach of their duties

of care, Atonio has suffered catastrophic and permanent life altering injuries and damages.

226. These consequences and damages will continue for the rest of

Atonio's life. This includes life-long medical care, more surgeries, life-long assisted living

care, and life-long loss of meaningful relationships with family and friends.

227. Atonio's life has been irreparably damaged. He is never going to be

the same.

228. The cost of Atonio's life-long assisted living and care will exceed

$20,000,000.

229. There is no medical cure for the massive brain injury sustained by

Atonio.

230. Defendants are responsible for Plaintiffs’ injuries and damages set

forth herein.

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 SIXTH CAUSE OF ACTION

~ Loss of Consortium ~

Against all Defendants

231. Plaintiffs incorporate by reference all other paragraphs herein.

232. This loss of consortium claim is not subject to notice under the Utah

Governmental Immunity Act, including the requirement to file a notice of claim because it

is a derivative claim. This claim is derived from federal and state constitutional actions on

which no notice of claim and no application of the Utah Governmental Immunity Act are

required. Plaintiffs have nevertheless filed notice of this claim in this case.

233. The wrongdoing of Defendants caused injury to Atonio, which has

caused Nonnie to be denied consortium, companionship, love, and emotional support that

she formally enjoyed with Atonio.

234. Nonnie's damages were caused by the wrongful, unconstitutional acts

alleged in the First, Second, Third, Fourth, and Fifth Causes of Action herein, and are

therefore caused by Defendants' unconstitutional conduct.

235. Nonnie is entitled to damages for the loss of consortium as determined

by a jury, and for punitive damages and attorney fees as may be allowed by law.

SUMMARY OF INJURIES AND DAMAGES

236. Plaintiffs incorporate by reference all other paragraphs herein.

237. Atonio was illegally seized by Fox.

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 238. Atonio was struck by a car due to the actions of Defendants, and

suffered catastrophic injuries including but not limited to extremely serious brain injury,

profound loss of almost all brain and bodily functions, massive and permanent orthopedic

injuries, inability to take care of any of his ADL (activities of daily living), and other major

life altering damages.

239. Atonio will now have to live in a care facility for the rest of his life.

He will require twenty-four (24) hour care and supervision.

240. Atonio's family members have been denied the association and benefit

of his company and life.

241. Atonio was subjected to unnecessary rigor while being detained

unsafely in the middle of the dark, busy roadway.

242. Because of Defendants’ unnecessary and unreasonable actions,

Atonio has suffered severe life altering damage including: great physical pain, mental and

emotional damage, loss of familial relationship, and economic damage in the millions of

dollars.

243. These damages are caused by the actions of Defendants, specifically

Officers Fox and Williams, as well as by West Valley City, which employs Defendant

Officers.

JURY DEMANDED

Plaintiffs demand a Jury Trial on all Causes of Action included herein.

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 REQUESTS FOR RELIEF

WHEREFORE, Plaintiffs pray judgment against Defendants as follows:

1. For general and compensatory damages in an amount to be

determined at trial;

2. For special damages as are shown at trial and as may be allowed by

law;

3. For punitive damages against Defendants as may be allowed by law

and as are shown at trial;

4. For pre-judgment interest on the damages assessed by the Court, as

allowed by law;

5. For Plaintiffs’ costs and reasonable attorney fees incurred herein,

pursuant to 42 U.S.C. 1988; and as otherwise may be allowed by Utah State or federal law;

and,

6. For such other and further relief as the Court deems just and proper.

DATED this 28th day of December 2021.

SYKES McALLISTER LAW OFFICES, PLLC

/s/ C. Peter Sorensen

ROBERT B. SYKES
C. PETER SORENSEN
CHRISTINA D. ISOM
Attorneys for Plaintiffs

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