COMPLAINT FOR DAMAGES - 1

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JOHN L. BURRIS ESQ., SBN 69888

DEWITT LACY, ESQ., SBN 258789

LAW OFFICES OF JOHN L. BURRIS

Airport Corporate Centre

7677 Oakport Street, Suite 1120

Oakland, California 94621

Telephone: (510) 839-5200

Facsimile: (510) 839-3882 

john.burris@johnburrislaw.com

dewitt.lacy@johnburrislaw.com

Attorneys for Plaintiff 

RON FRANKLIN

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

RON FRANKLIN, an individual 

 

 Plaintiff,

vs.

CITY OF SAN LEANDRO, a municipal 

corporation; DENNIS MALLY, individually and 

in his capacity as an officer for the San Leandro 

Police Department; and DOES 1-50, inclusive,

individually, jointly and severally,

 Defendants.

 

 CASE NO.: 3:17-cv-00789

COMPLAINT FOR DAMAGES

(42 U.S.C §§ 1983, 1988; and pendent tort 

claims)

 JURY TRIAL DEMANDED

INTRODUCTION

1. This is an action for damages brought pursuant to Title 42 U.S.C §§ 1983 and 1988, 

and the Fourth and Fourteenth Amendments to the United States Constitution, under California Civil 

Code Sections 52.1, and under the common law of California. This action is against the City of San 

Leandro, Officer Dennis Mally of the San Leandro Police Department, and DOES 1-50.

Case 4:17-cv-00789-HSG Document 1 Filed 02/16/17 Page 1 of 9
COMPLAINT FOR DAMAGES - 2

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2. It is also alleged that these violations and torts were committed during the course and 

scope of the above mentioned officer’s employment with the San Leandro Police Department. 

JURISDICTION

3. This action arises under Title 42 of the United States Code, Section 1983. Jurisdiction 

is conferred upon this Court by Title 42 of the United States Code, Sections 1331 and 1343. The 

unlawful acts and practices alleged herein occurred in the City of Oakland, California which is within 

the jurisdictional boundaries of this court. The damages sought are within the jurisdictional limits of 

this Court. 

PARTIES

4. RON FRANKLIN (“Plaintiff”) has been and is a resident of the state of California and 

is a United States Citizen.

5. Defendant Officer DENNIS MALLY (“Defendant Mally”) is sued in his individual 

capacity and in his capacity as an officer for the City of San Leandro Police Department.

6. Defendant CITY OF SAN LEANDRO (“City”) is and at all times mentioned herein, a 

municipal entity, duly organized and existing under the laws of the State of California. Under its 

authority, the City operates the San Leandro Police Department.

7. Plaintiff is ignorant of the true names and capacities of Defendants DOES 1 through 

50, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff is informed and 

believes and thereon alleges that each defendant so named is responsible in some manner for the 

injuries and damages sustained by Plaintiff as set forth herein. Plaintiff will amend this complaint to 

state the names and capacities of DOES 1-50, inclusive, when they have been ascertained.

ADMINISTRATIVE PREREQUISITES

8. Plaintiff is required to comply with an administrative tort claim requirement under 

California law. Plaintiff has exhausted all administrative remedies pursuant to California 

Government Code Section 910. Plaintiff filed an administrative claim with the City of San Leandro 

on April 8, 2016. On August 16, 2016, Plaintiff received notice that the City of San Leandro rejected 

his claim. 

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FACTUAL ALLEGATIONS

9. On October 8, 2015 at approximately 12:50 p.m., Plaintiff was running errands with 

his younger sister and uncle, Kevin Govan, in Mr. Govan’s car. Plaintiff and his five-year-old cousin 

were in the back seat of the car, while Mr. Govan was driving.

10. While driving, Mr. Govan noticed a San Leandro Police Department patrol vehicle 

behind him. Mr. Govan proceeded to stop at a stop sign when the patrol car pulled up next to his car. 

Mr. Govan, in an attempt to be cordial, waved at the yet-to-be identified San Leandro Police Officer. 

Mr. Govan then proceeded through the stop sign and was immediately pulled over by the Officer. 

The Officer approached Mr. Govan’s car and told Mr. Govan to get out of the car. When Mr. Govan 

asked why he needed to step out of the car, the Officer stated that he was going to “show” him why. 

Mr. Govan then drove away from the traffic stop without permission from the Officer. 

11. Shortly thereafter, Mr. Govan drove onto a divider located at or near the intersection 

of 85th and E Street in Oakland, CA. The vehicle was immediately surrounded by yet-to-be identified 

officers from the Oakland and San Leandro Police Departments. Mr. Govan exited his car, leaving 

Plaintiff and his daughter in the car. Yet-to-be identified Officers then ordered Plaintiff and his 

cousin to exit the car and put their hands up. Plaintiff complied with the commands and began to exit 

the car. As Plaintiff opened the door of the car, Defendant Mally needlessly released a K9 officer into 

the car. The K9 Officer engaged Plaintiff and began to drag him out of the car. The Defendant 

Officers then ordered Plaintiff to get on his stomach. Plaintiff could not physically comply with the 

command due to the fact that the K9 Officer was still engaged on his left arm. Defendant Mally then 

watched as the K9 officer violently and needlessly continued to viciously bite and tug Plaintiff’s arm 

in multiple directions. 

12. Plaintiff alleges that only an unreasonable officer would release a K9 officer and allow 

it to viciously bite an unarmed and defenseless man in the manner and under the circumstances the 

Defendant officers did, that Plaintiff never presented any threat to anyone that could justify the 

amount of force that the Defendant officers used, and that the Defendant officers had a clear 

opportunity to evaluate the situation and determine that Plaintiff was unarmed and did not pose any 

threat of harm. 

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13. As a result of the incident, Plaintiff suffered deep puncture wounds to his left arm. 

Plaintiff also suffered severe emotional distress. 

14. The actions and omissions of the City and the Defendant San Leandro Police 

Department Officers was objectively unreasonable under the circumstances, without legal 

justification or other legal right, done under color of law, within the course and scope of their 

employment as law enforcement officers and/or public officials, and pursuant to unconstitutional 

customs, policies and procedures of the City and/or other jurisdictions. The City was also responsible 

for Plaintiffs’ injuries through its own acts and omissions, negligent and otherwise, by failing to 

properly and adequately investigate, train, supervise, monitor, instruct, and discipline its law 

enforcement officers and/or employees and agents, including the officers and officials described 

herein.

DAMAGES

15. As a consequence of Defendants’ violations of Plaintiff’s federal civil rights under 42 

U.S.C. §1983 and the Fourteenth Amendment, Plaintiff was physically, mentally, emotionally, and 

financially injured and damaged as a proximate result of Defendants' wrongful conduct. 

16. Plaintiff found it necessary to engage the services of private counsel to vindicate his 

rights under the law. Plaintiff is therefore entitled to an award of attorneys’ fees and/or costs 

pursuant to statute(s) in the event that he is the prevailing parties in this action under 42 U.S.C. §§§§ 

1983, 1985-86 and 1988. Plaintiff is also entitled to punitive damages under 42 U.S.C. §§§§ 1983, 

1985-86 and 1988.

FIRST CAUSE OF ACTION

(Violation of the Fourth Amendment of the United States Constitution-Unlawful 

Seizure)

(42 U.S.C. § 1983)

(Against Defendants Mally and DOES 1-25)

17. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 16 of this 

Complaint.

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18. Defendants' above-described conduct violated Plaintiff's right as provided for under 

the Fourth Amendment to the United States Constitution to be free from unreasonable searches and 

seizures because Defendants’ lacked the requisite probable cause to arrest Plaintiff.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

SECOND CAUSE OF ACTION

(Violation of the Fourth Amendment of the United States Constitution-Excessive Force)

(42 U.S.C. § 1983)

(Against Defendants Mally and DOES 1-25)

19. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 18 of this 

Complaint.

20. Defendants’ above-described conduct constituted violations of Plaintiff’s rights as 

provided for under the Fourth Amendment to the United States Constitution. These rights include but 

are not limited to the right to be free from excessive force and/or the arbitrary and/or unreasonable 

use of force against him. 

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

THIRD CAUSE OF ACTION

(Monell - 42 U.S.C. Section 1983)

(Against Defendants City and DOES 26-50)

21. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 20 of 

this Complaint.

22. As against Defendants City, and/or DOES 26-50 and/or each of them, individually 

and/or in their capacities as official policy-maker(s) for City, including the District Attorney’s Office. 

Plaintiff further alleges that the acts and/or omissions alleged in the Complaint herein are indicative 

and representative of a repeated course of conduct by members of Defendant City tantamount to a 

custom, policy or repeated practice of condoning and tacitly encouraging the abuse of police 

authority, and disregard for the constitutional rights of citizens, such as Plaintiffs. 

23. Plaintiff’s are informed and believe and thereon allege that the acts and/or omissions 

alleged herein are the proximate result of a custom, policy, pattern or practice of deliberate 

indifference by Defendants City, Mally, DOES 1-25 and/or each of them, to the repeated violations 

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of the constitutional rights of citizens by San Leandro Police Department officers, which have 

included, but are not limited to, repeated acts of: making false reports, providing false and/or 

misleading information in causing detentions, arrests, imprisonments and/or malicious prosecutions 

based on fabricated and/or misleading statements and/or engaging in similar acts of misconduct on a 

repeated basis and failure to institute and enforce a consistent disciplinary policy and/or early 

warning system.

24. Plaintiff is informed and believes and thereon alleges that the acts and/or omissions 

alleged herein are the proximate result of a custom, policy, pattern or practice of deliberate 

indifference by Defendants City, Mally, DOES 26-50 and/or each of them, to the repeated violations 

of the constitutional rights of citizens by the San Leandro Police Department.

25. Plaintiff is further informed and believe and thereon allege that the damages sustained 

as alleged herein were the proximate result of customs, policies and/or practices which included, but 

were not limited to, the failure to adequately or appropriately hold officers accountable for their 

misconduct, the failure to properly and fairly investigate complaints about officers’ misconduct, the 

failure to enact or adopt policies to ensure adequate and/or appropriate oversight of officers to 

prevent continuing violations of the rights of citizens.

26. The aforementioned deliberate indifference, customs, policies or practices of 

Defendants City, Mally, DOES 1-25, and/or each of them, resulted in the deprivation of the 

constitutional rights of Plaintiff , including, but not limited to, the right to be free from unreasonable 

searches and/or seizures; and/or,

27. As a result of the violation of their constitutional rights by Defendants City, Mally, 

and/or DOES 1-25 and/or each of them, Plaintiff sustained the injuries and/or damages as alleged 

heretofore in this Complaint.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

FOURTH CAUSE OF ACTION

(Violation of CALIFORNIA CIVIL CODE §52.1)

(Against Defendants Mally and DOES 1-25)

28. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 27 of 

this Complaint.

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29. Defendants’ above-described conduct constituted interference, and attempted 

interference, by threats, intimidation and coercion, with the Plaintiff Pearson’s peaceable exercise and 

enjoyment of rights secured by the Constitution and laws of the United States and the State of 

California, in violation of California Civil Code §52.1. 

30. As a direct and proximate result of Defendant's violation of Civil Code § 52.1, 

Plaintiff suffered violations of his constitutional rights, and suffered damages as set forth herein.

31. Plaintiff is entitled to injunctive relief and an award of his reasonable attorney’s fees 

pursuant to Civil Code § 52.1(h).

32. Plaintiff is entitled to treble damages, but in no case less than $4,000.00 and an award 

of his reasonable attorney’s fees pursuant to Civil Code § 52(a).

33. Under the provisions of California Civil Code §52(b), Defendant is liable for punitive 

damages for each violation of Civil Code §52.1, reasonable attorney’s fees and an additional 

$25,000.00. 

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

FIFTH CAUSE OF ACTION

(Negligence)

(Against Defendants Mally and DOES 1-50)

34. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 33 of this 

Complaint, except for any and all allegations of intentional, malicious, extreme, outrageous, wanton, 

and oppressive conduct by defendants, and any and all allegations requesting punitive damages. 

35. The present action is brought pursuant to section 820 and 815.2 of the California 

Government Code. Pursuant to section 820 of the California Government Code, as public employees, 

Defendants DOES 1-25 are liable for injuries caused by their acts or omissions to the same extent as 

a private person. At all times mentioned herein, Defendants DOES 1-25 were acting within the course 

and scope of their employment and/or agency with Defendant City. As such Defendant City is liable 

in respondeat superior for the injuries caused by the acts and omissions of Defendants DOES 1-25 

pursuant to section 815.2 of the California Government Code. 

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36. Defendants negligently and without due care released a K9 officer on Plaintiff without 

legal justification. Plaintiff was seriously injured as a proximate and direct cause of the Defendants’ 

negligent conduct.

37. The violent and needless mauling of Plaintiff occurred as a result of the absence of due 

care for the safety of others and constituted an unreasonable, unwarranted, and excessive use of force 

and manifested an unreasonable risk of injury to Plaintiff.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

SIXTH CAUSE OF ACTION

(Battery)

(Against Defendants Mally and DOES 1-25)

38. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 37 of 

this Complaint.

39. Defendants’ intentionally released a K9 officer on Plaintiff without any just 

provocation or cause. Defendants' conduct was neither privileged nor justified under state statute or 

common law.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

SEVENTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)

(Against Defendants Mally and DOES 1-25)

40. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 39 of 

this Complaint.

41. Defendants' above-described conduct was extreme, unreasonable and outrageous. 

Defendants' needlessly released a K9 officer on Plaintiff while he was unarmed and defenseless.

Further Defendants’ failed to timely disengage the K9 officer from Plaintiff. 

42. In engaging in the above-described conduct, Defendants intentionally ignored or 

recklessly disregarded the foreseeable risk that Plaintiff would suffer extreme emotional distress as a 

result of Defendants' conduct.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

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EIGHT CAUSE OF ACTION

(Malicious Prosecution)

(Against Defendants City, Mally, and DOES 1-25)

43. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 42 of 

this Complaint.

44. Defendants' conduct constituted malicious prosecution such that Defendants 

intentionally and maliciously instituted a legal action against Plaintiff. The legal action was instituted 

without probable cause and for the purpose of covering up said Defendants misconduct. The legal 

action was ultimately dismissed in Plaintiff’s favor.

WHEREFORE, Plaintiff prays for relief as hereinafter set forth.

JURY DEMAND

45. Plaintiff hereby demands a jury trial in this action.

PRAYER

WHEREFORE, Plaintiff prays for relief, as follows:

1. For general damages in a sum according to proof;

2. For special damages in a sum according to proof;

3. For punitive damages in a sum according to proof;

4. For reasonable attorney’s fees pursuant to 42 U.S.C. Section 1988;

5. For cost of suit herein incurred; and

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

 Law Offices of John L. Burris

Dated: February 15, 2017 __/s/ John L. Burris___ 

 John L. Burris Esq.,

 Attorney for Plaintiff

 

Dated: February 15, 2017 __/s/ DeWitt Lacy___ 

 DeWitt Lacy Esq.,

 Attorney for Plaintiff 

Case 4:17-cv-00789-HSG Document 1 Filed 02/16/17 Page 9 of 9