Robert B.

Sykes (#3180)
C. Peter Sorensen (#16728)
SYKES MCALLISTER LAW OFFICES, PLLC
311 S. State Street, Suite 240
Salt Lake City, Utah 84111
Telephone No. (801) 533-0222
[email protected]
[email protected]
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

LOPETI TALIAULI MISINALE,

COMPLAINT
Plaintiff, and
JURY DEMAND
vs.

KEVIN SPENCER; UNIFIED

TAYLORSVILLE POLICE DEPARTMENT; Civil No. _______________
and JOHN AND JANE DOES 1-20,
Judge ___________________
Defendants.

Plaintiff Lopeti Taliauli Misinale (Lopeti), pursuant to Rule 8(a), Fed.R.Civ.P.,

complains and alleges for causes of action against Defendants as follows:

PRELIMINARY STATEMENT

This is a civil rights action in which Plaintiff seeks relief for Defendants’ violations

of his rights guaranteed by the United States Constitution, specifically the Fourth and Fourteenth

Amendments, which rights are further secured by the Civil Rights Act of 1871, 42 U.S.C. § 1983

and § 1988. Plaintiff seeks damages, both compensatory and punitive; affirmative and equitable

relief; an award of attorney fees, costs, and interest; and other and further relief as is available under
law and as this Court deems just and equitable. This is further an action at law to redress a

deprivation under color of statute, ordinance, regulation, custom, or usage of a right, privilege, and

immunity secured to Plaintiff by the Fourth and Fourteenth Amendments of the Constitution of the

United States, and by the law, statutes, and Constitution of the State of Utah.

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 claims under 42 U.S.C. §§ 1983 and 1988.

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

States, and jurisdiction is therefore invoked pursuant to 42 U.S.C. § 1983.

3. The claims made in this Complaint occurred and arose in the State of Utah,

in this District, and in the Central Division of this Court. Venue is therefore proper under 28 U.S.C.

§ 1391 and 28 U.S.C. § 1331.

4. Plaintiff is seeking damages under federal law pursuant to the claims for relief

specified below, in amounts to be proved at trial.

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

42 U.S.C. § 1988.

6. This Court also has jurisdiction over any pendent State claims Plaintiff may

wish to bring, or has brought, pursuant to 28 U.S.C. § 1367. Among the pendent claims may be a

claim for violation of the Utah State Constitution.

2
 PARTIES

7. Plaintiff Lopeti Taliauli Misinale (“Lopeti”) is a citizen of the United States

of America and a resident of Salt Lake County, State of Utah.

8. Defendant Officer Kevin Spencer, at all times relevant herein, was employed

by the Taylorsville Police Department operating under the Unified Police Agency. At all times

relevant to this complaint, he was working in the United States of America within Salt Lake County,

State of Utah.

9. Unified Taylorsville Police Department is a department of Taylorsville City,

which is a subdivision of the State of Utah, and is operating within Salt Lake County, State of Utah.

10. Defendant John and Jane Does 1-10 are believed to be employees of the

Taylorsville Police Department, operating within their official capacities. Their true identities are

yet unknown but will be discovered during the discovery period. At all relevant times, they are

believed to be operating within the United States of America, and within Salt Lake County, State of

Utah.

11. Plaintiff may serve notice of his pendent State claims against Defendants

pursuant to Utah law. These claims may be amended into this Complaint at a later time. However,

Plaintiff denies that notice of such State claims is required of any of the current claims in this

Complaint since all current claims deal with constitutional violations under 42 U.S.C. § 1983, and

State law notice of such claims is not required.

3
 FACTUAL ALLEGATIONS

12. On August 25, 2016, at approximately 7:45am, Lopeti was driving his

roommate Johnny Sengamanichanh to the Salt Lake City International Airport.

13. They were riding in Lopeti’s dark blue Audi A-4.

14. They left their home located at approximately 2300 West 4450 South,

Taylorsville, Utah. They headed east toward 2200 West, and then turned right or south out of their

neighborhood onto 2200 West.

15. At the time, an area of 4700 South near 2200 West and I-215 was under

construction and the northbound I-215 on-ramps were closed for traffic entering on the south side

of the 4700 South road.

16. As a result of this closure, there was a temporary No U-Turn sign in place at

the next intersection, 2200 West and 4700 South, on the EB lanes.

17. Many vehicles were driving east to the intersection at 2200 West and 4700

South, and flipping an illegal U-turn to enter I-215 Northbound. See Exhibit 1, map of the area.

18. Lopeti, however, did not make a U-turn. He simply turned right, or west, at

the intersection of 2200 West onto 4700 South.

19. Since he made no U-turn, he had committed no traffic offense.

20. Lopeti was approaching the 4700 South NB on-ramp to I-215 when he saw

Officer Spencer of the Unified Taylorsville Police Department (UTPD) up ahead, parked on the

sidewalk, on the north side of 4700 South and just prior to the 4700 South and I-215 NB on-ramp.

4
 21. Officer Spencer was standing in the road motioning for the west-bound

vehicles behind Lopeti to pull to the side of the road, apparently for making an illegal U-turn at 2200

West and 4700 South.

22. Lopeti slowed down to a crawl as he saw Officer Spencer walking out into

the road.

23. Officer Spencer continued walking further into the lanes of traffic as Lopeti

approached.

24. As he was driving past the officer, Officer Spencer reached out and slapped

the windshield and passenger side mirror of Lopeti’s vehicle.

25. Officer Spencer yelled “PULL OVER!”

26. Lopeti then pulled his vehicle over just a few feet past Officer Spencer’s

parked police truck. He then rolled his window down and waited for the officer to come speak with

him.

27. Officer Spencer then walked around to Lopeti’s driver’s side door, opened it,

and yelled, “YOU HIT ME, GET THE FUCK OUT OF THE CAR!”

28. Without waiting for compliance and after Lopeti had begun to move, Officer

Spencer grabbed Lopeti by the arm and forcibly removed him from the car.

29. Officer Spencer wheeled Lopeti around and pushed him up against the

driver's-side rear door of his vehicle and placed him in handcuffs.

30. He walked Lopeti to the back of the car.

31. Officer Spencer then asked Lopeti why he did not pull over.

32. Lopeti responded that he had not done anything wrong.

5
 33. Officer Spencer claimed that Lopeti had hit him and then asked why he had

not pulled over.

34. Lopeti responded that he did not hit Officer Spencer. And then remarked that

it was Officer Spencer who had in fact walked toward him.

35. Officer Spencer then left Lopeti and walked to the open driver's door of the

Audi A-4.

36. Officer Spencer then asked Mr. Sengamanichanh for his identification.

37. Officer Spencer also asked Mr. Sengamanichanh where Lopeti’s identification

was.

38. Lopeti responded from the back of the vehicle that it was in his back pocket.

39. Officer Spencer then walked to the rear of the vehicle and asked Lopeti, "Why

didn’t you pull over when I told you to?”

40. Lopeti responded that he did pull over.

41. Officer Spencer then said, “ You should have pulled over in front of my

truck.”

42. Lopeti then asked why he was being pulled over.

43. Officer Spencer then accused Lopeti of making an illegal U-turn.

44. Lopeti informed the officer that he had not made any U-turn.

45. Officer Spencer said, “ Yes you did, I saw you.”

46. Lopeti responded, “No I didn’t.”

47. Officer Spencer then asked, “ How did you get through the intersection?”

48. Lopeti responded that he had turned right at the light.

6
 49. Officer Spencer interjected, “You mean left?”

50. Lopeti said, “No! Right.”

51. Officer Spencer then asked where they were coming from.

52. Lopeti responded, “From my house. I turned right off 2200 West” and told

the officer where he lived (2309 W. MacKay Lane, Taylorsville, Utah).

53. Officer Spencer then examined both licenses.

54. After looking at the licenses and realizing that he made a mistake, Officer

Spencer exclaimed, “FUCK YOU!”

55. He then hurriedly removed the handcuffs from Lopeti, handed back their IDs

and rudely ordered them to “GET THE FUCK OUT OF HERE!”

56. Lopeti climbed back into his car and proceeded on his way to the airport.

57. The whole encounter lasted roughly ten minutes.

58. No citation of any kind was issued by Officer Spencer at the time of the

incident.

59. As they were getting onto I-215, the pair noticed that the passenger-side mirror

of Lopeti’s vehicle, the one struck by Officer Spencer, was broken off and dangling only by the

electrical wires.

60. Lopeti dropped Mr. Sengamanichanh off at the airport and drove to work.

61. The next morning, August 26, 2016, he called the UTPD office to see what

he should do about getting his mirror fixed and report the mistreatment and embarrassment he

experienced.

7
 62. He spoke with Sergeant Montgomery who informed him that Officer Spencer

had already called the office and admitted that he had “lost his cool” and “made a mistake” in pulling

over Lopeti’s vehicle.

63. Lopeti then inquired about how to get his mirror fixed and was informed he

would have to file a complaint and that the office would handle it after that.

64. A couple days later, on August 29, 2016, Lopeti went in to the police station

and filed a complaint.

THE PROSECUTIONS

False & Misleading Statements

65. On December 5, 2016, more than three months after the incident, Lopeti

received a phone call from pre-trial services informing him that he was going to be arrested for

“failing to appear before the court.”

66. Lopeti was informed that he had been charged with a 3rd degree felony and

that he had outstanding warrants for his arrest, arising out of the incident.

67. Apparently, Officer Spencer, after learning of Lopeti's complaint about the

mirror, had falsely filed charges accusing Lopeti of failing to yield to a signal to stop and attempting

to flee or elude a police officer by a vehicle.

68. Lopeti retained Attorney Steven Dubreuil originally and then Wade Taylor

to represent him at the court appearance that he was informed about over the phone.

69. When he appeared at the Third District Court in West Jordan on December

22, 2016, he was informed that there had been attempts to serve him with criminal charges.

8
 70. The service had been conducted months earlier and was sent to an address in

Sandy at which he had not lived for over 10 years.

71. He learned that due to the actions of Officer Spencer, he had been formally

charged with a) Failure to Yield to Officer’s Signal to Stop and b) Attempting to Flee or Elude a

Peace Officer by Vehicle or Other Means.

72. The judge was baffled at the deficiencies in the service process and would not

allow Mr. Lopeti to be arrested.

73. Lopeti then self-reported to the jail on January 1, 2017, for processing.

74. After months of negotiations and showing the inconsistencies in the Officer's

statements, the felonies were eventually dismissed by the Court on June 21, 2017.

75. Lopeti then called to see the status of the internal investigation into Officer

Spencer and spoke with Sgt. David Soper with internal affairs.

76. He was informed that the department couldn’t talk about it, but that he would

be notified about the final resolution.

77. In March of 2018, Lopeti received a phone call informing him that he needed

to report to the Taylorsville Justice Court.

78. When he inquired the purpose, he was informed by a Deputy Johnson, that

he was being formally served with misdemeanor charges relating to the same incident in August of

2016.

79. Lopeti was forced again to retain Wade Taylor in his defense against another

set of false charges instituted against him by Officer Spencer, after the dismissal of the felonies.

9
 80. He was now being charged criminally with three (3) misdemeanors, a)

Interference with Arresting Officer, b) Reckless Driving, and c) Negligent Collision, all

misdemeanors.

81. Lopeti then went before the court to again successfully show the insufficiency

of the evidence against him and the inconsistencies of Officer Spencer’s account of the erroneous

traffic stop.

82. These misdemeanors were dismissed on July 11, 2018.

83. Lopeti had been forced, twice, to successfully defend himself from fabricated

charges by Officer Spencer.

FIRST CAUSE OF ACTION

Malicious Prosecution and False Arrest – Misleading Prosecutor

Against Officer Spencer in His individual and Official Capacities

In Violation of the Fourth Amendment,

Cognizable Under 42 U.S.C. § 1983

84. Plaintiff incorporates by reference all other allegations herein.

85. Defendants are liable for the constitutional torts of malicious prosecution and

false arrest because they knowingly and intentionally supplied false and misleading information to

prosecutors and/or omitted material facts necessary to understand the truth.

86. Based on information and belief, Officer Spencer filed false and malicious

charges out of spite and in retaliation for Lopeti filing a complaint for the way he was treated on the

roadside, and a claim for the damaged mirror, for which Spencer did not want to pay.

87. These false and misleading statements and omissions caused the false arrest

and two separate malicious prosecutions of Plaintiff Lopeti Misinale.

10
 88. Lopeti has a Fourth Amendment right to be free from unreasonable seizures

and from false and malicious prosecutions.

89. A false arrest is a species of false imprisonment. It is unlawful detention

without legal process.

90. A malicious prosecution claim under §1983 includes the following elements:

a. The Defendants' actions caused the Plaintiff's prosecution;

b. The original action terminated in favor of the Plaintiff;

c. No probable cause supported the original arrest, continued confinement, or

prosecution;

d. The Defendants acted with malice; and

e. The Plaintiff sustained damages.

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008). See also, Hartman v. Moore, 547 U.S. 250, 258

and 265 (2006), and Albright v. Oliver, 510 U.S. 266 (1994).

91. Defendants knowingly and/or recklessly supplied false and misleading

information to investigators or prosecutors, and/or omitted to state material facts, as follows:

a. They claimed that Lopeti failed to yield to an officer's commands, when in fact

he did not;

b. They claimed that Lopeti hit Officer Spencer, when in fact he did not;

c. They omitted material and exculpatory facts such as the true make and model

of Lopeti’s vehicle, when in fact it was a different vehicle entirely;

d. They misrepresented Lopeti's motives for his completely legal actions.

11
 92. Defendants caused Lopeti to be twice prosecuted even though all charges were

dismissed.

93. Defendants acted with malice when Spencer made the statements to

persecutors, as set forth above. Specifically, out of spite and retribution for Lopeti’s complaint for

the way he was treated on the roadside and his complaint about the loss of his mirror, Spencer

knowingly instituted two (2) false and malicious prosecutions involving five (5) separate criminal

charges.

94. The prosecution of Lopeti terminated in his favor twice when the charges

against him were dismissed.

95. Lopeti has been damaged by Defendants as set forth herein.

SECOND CAUSE OF ACTION

Supervisory Liability of Taylorsville Police Department

In its Individual and Official Capacities

Cognizable under 42 U.S.C. § 1983

96. Plaintiff incorporates by reference all other allegations set forth herein.

97. Officer Spencer was the police officer levying false and malicious allegations

about the incident, and who provided false information which caused Lopeti to be prosecuted.

98. Officer Spencer provided to prosecutors the only factual account in this

investigation, and exercised influence, control and/or direction of any investigation.

99. Officer Spencer was familiar with the true facts, including all the exculpatory

facts, and still falsified all of them when he filed charges against Lopeti.

12
 100. Officer Spencer caused the false arrest and malicious prosecution of Lopeti

by falsely reporting facts in charging documents used by prosecutors. Officer Spencer also failed

to exercise control, direction, and supervision to ensure that the exculpatory evidence that had been

uncovered was fairly, accurately, and completely presented to prosecutors.

101. Officer Spencer knowingly and wrongfully supplied false, incomplete, and

misleading facts to the investigator, which caused wrongful prosecution, as set forth in the First

Cause of Action herein.

102. Officer Spencer is also responsible and exercised direct authority to

implement the policies of the Unified Taylorsville Police Department, which required that the

evidence be fairly and accurately presented, and it required that he tell the full truth, without omitting

key facts, when providing information to a prosecutor.

103. Because of the actions of Officer Spencer, there were lies and failure to

disclose exculpatory evidence to the investigators and prosecutors, which led to a false arrest and a

wrongful and malicious set of prosecutions.

104. At the time of Defendant Officer Spencer’s wrongful conduct, it was clearly

established that officers were required to disclose exculpatory evidence in their possession and

control and be honest when providing statements and evidence to prosecutors.

105. Objectively reasonable supervisors would have known that they had a duty

to disclose all such evidence relating to the Lopeti investigation. Officer Spencer did not do so.

106. Officer Spencer’s supervisors knew or should have known and/or discovered

Spencer’s false reporting, particularly since Spencer had earlier reported to a sergeant or other

supervisors that he had made a mistake and “lost it.” See Paragraph 62 above.

13
 107. Officer Spencer caused Lopeti to be prosecuted, even though he was knew

Lopeti was innocent of all charges.

108. UTPD failed to properly supervise Spencer and allowed the false arrest and

wrongful prosecution to happen.

109. The prosecution of Lopeti terminated in his favor when the charges were

dismissed, twice.

110. No probable cause supported either prosecution, since Officer Spencer lied,

misrepresented and/or omitted material facts that caused the prosecutors to seek criminal charges.

111. Officer Spencer acted with malice, in that he intended to cause the prosecution

out of spite or animus for Lopeti’s claim for the damaged mirror, even though Spencer knew or

should have known there was no evidence of improper or criminal conduct. For example, Spencer

stated that he pulled over a silver Ford Mustang. Lopeti’s car was a blue Audi A-4. Officer Spencer

claimed that Lopeti failed to stop, but the evidence proved that he did in fact stop. Officer Spencer

also admits he mistakenly pulled over the wrong vehicle and released Lopeti in his report. Officer

Spencer further alleged that Lopeti hit him with his vehicle when, in fact, it was Officer Spencer who

forcibly struck the car with his hands. Officer Spencer had this knowledge and still filed criminal

charges based on his false account of events. This led to the false arrest and illustrates the malice

requisite to satisfy this element of the claim.

112. Lopeti was damaged in that he sustained considerable humiliation,

mortification, loss of status within the community, and severe opprobrium from the tight knit

community in which he lives, which he still encounters, due to the false charges created by Officer

Spencer and Defendants' false charges that labeled Lopeti a criminal.

14
 113. Lopeti also had damages in that he was forced to pay two criminal law

attorneys to defend him against the false charges.

DAMAGES SUMMARY

114. In addition to other damages set forth or implied herein, the actions of

Defendants damaged Lopeti at least as follows:

a. Loss of Income. Lopeti had to take time off work to attend to court

procedures.

b. Expenses to Defend Against Criminal Prosecution. Lopeti paid a bond

premium and paid attorney fees to defend himself against the false charges.

c. Pain, Suffering and Humiliation. In addition to all the other damages,

Lopeti suffered extreme pain, suffering, humiliation, loss of face, damage to reputation, and

irreparable pain, suffering and grief. As one example, Lopeti was handcuffed behind his vehicle

while wearing his work scrubs just blocks from his home. Many people who live around him saw

or could have seen him. Lopeti has suffered great mental anguish wondering who saw him on the

side of the road that day.

d. Lost Mirror. Lopeti paid about $1,000 to replace the mirror that Officer

Spencer knocked off when he hit Lopeti’s car.

JURY DEMAND

Plaintiff requests a jury trial on all issues in this case.

REQUEST FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendants as follows:

15
 1. For general compensatory damages for Plaintiff in an amount to be determined

at trial;

2. For special damages as are shown at trial;

3. For punitive damages against named individuals for willful, malicious

conduct, as may be allowed by law;

4. For pre-judgment interest on the damages assessed by the verdict of the jury,

as allowed by law;

5. For Plaintiff's costs and reasonable attorney fees incurred herein, pursuant to

42 U.S.C. 1988; and

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

DATED this 4th day of December, 2018.

SYKES MCALLISTER LAW OFFICES, PLLC

/s/ Robert B. Sykes

ROBERT B. SYKES
C. PETER SORENSEN
Attorneys for Plaintiffs

16
EXHIBIT 1