Case 9:22-cv-00141-DWM Document 1 Filed 08/22/22 Page 1 of 11

Thomas Schoenleben
BITTERROOT LAW, PLLC
107 South Second St.
P.O. Box 1312
Hamilton, MT 59840
406-360-7336
tom@bitterrootlaw.com

Timothy M. Bechtold
BECHTOLD LAW FIRM, PLLC
317 East Spruce Street
P.O. Box 7051
Missoula, MT 59807
406-721-1435
tim@bechtoldlaw.net

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

TANNER WHITE )
)
Plaintiff,
) COMPLAINT and
vs. ) JURY DEMAND
)
FLATHEAD COUNTY, SAM COX, AND
)
JOHN DOES 1-10
)
Defendants.
)
)

COMPLAINT PAGE 1
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INTRODUCTION

1. This is an action for deprivation of civil rights under color of law, and for

assault and battery, negligence, and other wrongful acts. This action arises out of

both federal and state law for damages resulting from the unlawful conduct of

Defendants Sam Cox, Flathead County, and John Does 1-10.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over the claims specified in this

Complaint pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 42 U.S.C. § 1983.

3. Jurisdiction for state law claims against all Defendants pursuant to the law of

the State of Montana is conferred upon this Court pursuant to 28 U.S.C. § 1367.

4. Venue in this case is proper under 28 U.S.C. § 1391 and LR 3.2. Flathead

County is located in the Missoula Division of the United States District Court for

the District of Montana. The events giving rise to the claims in this case occurred

in this judicial district.

5. Because Plaintiff makes no allegations against the State of Montana,

pursuant to MCA § 2-9-301, he is not required to file administrative claims against

Flathead County prior to filing this action.

THE PARTIES

6. Plaintiff Tanner White is a citizen of the State of Montana and a resident of

Kalispell, Montana.

COMPLAINT PAGE 2
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7. Based on information and belief, Defendant Cox is a citizen of the State of

Montana and a resident of Flathead County, Montana. Defendant Cox was an

employee of the Flathead County Sheriff’s Office at all times pertinent to this

matter. He is sued in both his individual and official capacities.

8. Defendant Flathead County is a political subdivision of the State of

Montana.

9. Defendants Does 1-10 are individuals whose true identities and capacities

are as yet unknown to Plaintiff and his counsel, despite diligent inquiry and

investigation, and who acted herein as described more particularly below in

connection with the breaches of duties and/or violations of law alleged here and

who in some manner or form not currently discovered or known to Plaintiff may

have contributed to or be responsible for the injuries alleged here. The true names

and capacities of the Doe Defendants will be substituted as they become known.

FACTUAL ALLEGATIONS

10. On or about August 25, 2019, Plaintiff Tanner White was arrested and

injured by Flathead County Sheriff’s Deputies.

11. White was aware that an active arrest warrant had been issued for his arrest.

12. Upon initial contact with law enforcement on August 25, 2019, White

attempted to elude officers by running from the officers.

13. White decided to stop fleeing.

COMPLAINT PAGE 3
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14. White sat down and waited for law enforcement to catch up to him.

15. A Flathead County Sheriff’s deputy arrived and directed White to roll onto

his stomach and put his hands behind his back. White rolled onto his stomach and

put his hands behind his back and the deputy handcuffed White’s hands behind

White’s back and told White he was under arrest.

16. Multiple officers and multiple vehicles then arrived and surrounded White.

17. White was scared and began to shout at the officers to leave him alone.

White asked to be placed in a truck or car.

18. White had trouble breathing while in the face-down position and told the

deputies as much.

19. At no time did White leave the prone position on the ground or attempt to

escape.

20. While White was handcuffed and in the prone position on the ground,

Defendant Cox kicked White in the face.

21. The kick caused White immediate pain.

22. White was placed in a squad car.

23. White lost consciousness in the squad car and awoke in a hospital.

24. The officer transporting White told White that he believed White had a

seizure.

25. White does not have a history of seizures, and this is the only seizure that

Mr. White has experienced.

COMPLAINT PAGE 4
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26. White was taken from the hospital to the Flathead County detention center.

27. White recalls being placed in a cell for days without follow up medical care

and was only removed for the purpose of taking a booking photo.

28. While White was in custody at the Flathead County Detention Center he

experienced back pain, head pain, vision issues, and rib pain.

29. The physical pain persisted after White’s release from custody.

30. White still experiences vision loss in one eye caused by the kick by

Defendant Cox.

31. Mr. White has suffered persistent emotional distress and a fear of being

injured by law enforcement.

COUNT 1
42 USC § 1983
INDIVIDUAL LIABILITY

32. Plaintiff hereby incorporates all prior paragraphs.

33. At all times in which he interacted with White on or about August 25, 2019,

Defendant Cox acted under color of law, statutes, ordinances, rules, regulations,

customs, policies, practices, and/or usages of Flathead County.

34. At all times in which he interacted with White on or about May 22, 2021,

Defendant Cox acted within the course and scope of his employment.

35. Defendant Cox, while acting under color of law, deprived White of his civil

rights under the Fourth Amendment to be free from the use of excessive force.

COMPLAINT PAGE 5
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36. Defendant Cox, while acting under color of law, deprived White of his civil

rights under the Fourteenth Amendment to due process of law.

37. The acts and omissions of Defendant Cox, while carried out under color of

law, have no justification or excuse in law, and instead constitute a gross abuse of

governmental authority and power, shock the conscience, are fundamentally unfair,

arbitrary and oppressive, and unrelated to any activity in which governmental

officers may appropriately and legally undertake in the course of protecting

persons or property, or ensuring civil order. The above acts and omissions were

consciously chosen from among various alternatives.

38. Defendant Cox assaulted White in violation of rights guaranteed to White

under the United States Constitution.

39. This unnecessary and unwarranted use of force was an unlawful and

excessive use of force, in violation of White’s rights.

40. Each of the foregoing acts and/or omissions in this Count directly and

proximately caused or contributed to White’s constitutional deprivations, injuries,

and damages. White suffered and will continue to suffer great mental and physical

pain, suffering, anguish, fright, nervousness, anxiety, shock, humiliation, indignity,

harm to reputation, and apprehension, which have caused White to sustain

damages in a sum to be determined at trial.

COUNT 2
42 USC § 1983
ENTITY LIABILITY
COMPLAINT PAGE 6
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41. Plaintiff hereby incorporates all prior paragraphs.

42. Defendant Flathead County established policies, customs, and practices that

caused the violation of White’s rights under the United States Constitution.

43. The Flathead County Sheriff’s Department has a pattern and practice of

using excessive force against individuals and tolerating the use of excessive force

by Flathead County Sheriff’s department officers.

44. The policies, customs, and practices implicitly or explicitly adopted by

Defendant Flathead County amounted to deliberate indifference to and conscious

disregard of White’s constitutional rights and ratification of violation of those

rights.

45. These constitutional violations were acts of official governmental policies.

46. Each of the foregoing acts and/or omissions in this Count directly and

proximately caused or contributed to White’s constitutional deprivations, injuries,

and damages. White suffered and will continue to suffer great mental and physical

pain, suffering, anguish, fright, nervousness, anxiety, shock, humiliation, indignity,

harm to reputation, and apprehension, which have caused White to sustain

damages in a sum to be determined at trial.

COUNT 3
MONTANA CONSTITUTIONAL RIGHTS

47. Plaintiff hereby incorporates all previous paragraphs.

COMPLAINT PAGE 7
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48. Pursuant to the Montana Constitution, see Dorwart v. Caraway, 58 P.3d 128

(Mont. 2002), White has the fundamental, inalienable, and self-executing rights to

individual privacy; to be secure in his person, papers, home, and effects from

unreasonable searches and seizures; and not to be deprived of life, liberty, or

property without due process of law.

49. Defendants’ acts and omission related to the incident involving White on

August 25, 2019, violated White’s constitutional rights.

50. White has the right to seek recourse against those who violate his

constitutional rights.

51. Each of the foregoing acts and/or omissions in this Count directly and

proximately caused or contributed to White’s constitutional deprivations, injuries,

and damages, and White is entitled to compensatory damages and attorneys’ fees

for Defendants’ violations of his state constitutional rights.

COUNT 4
NEGLIGENCE

52. Plaintiff hereby incorporates all previous paragraphs.

53. At all times pertinent to this Complaint, Defendants were subject to a duty of

care under state law in the exercise of the police function to protect White’s

constitutional, statutory, and common law rights. The conduct of Defendants as set

forth in this Complaint does not comply with the standard of care, and included

negligent use of excessive force; negligent training, supervision and discipline of

COMPLAINT PAGE 8
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law enforcement officers; negligent enactment, enforcement, and violation of law

enforcement policies and procedures; negligent violation of White’s constitutional,

statutory, and common law rights; and negligent performance of official duties.

54. As a direct and proximate result of Defendants’ negligence, White suffered

injuries.

COUNT 5
ASSAULT AND BATTERY

55. Plaintiff hereby incorporates all previous paragraphs.

56. Defendant Cox made harmful or offensive contact with White. Defendant

Cox’s use of force exceeded that necessary to restrain or detain or arrest White.

57. Defendant Cox’s intentional acts constituted assault and battery upon White,

and directly and proximately caused injuries to White.

COMPENSATORY DAMAGES

58. As a direct result of Defendants’ unlawful conduct, White suffered violations

of his constitutional rights as set forth above.

59. As a direct and proximate result of Defendants’ unlawful conduct, White

suffered physical and emotional pain and injuries.

PUNITIVE DAMAGES

60. White has filed this action against Defendant Cox in his individual and

official capacities.

COMPLAINT PAGE 9
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61. Defendant Cox acted knowingly, deliberately, intentionally, and maliciously

without regard for White’s rights, interests, and well-being.

62. Defendant Cox exhibited a reckless or callous disregard for White’s

constitutional, statutory, and common law rights; Defendant Cox intentionally

violated federal law; and/or Defendant Cox’s conduct was precipitated by evil

motive or intent. Accordingly, imposition of punitive damages is proper and

warranted under 42 USC §§1983 and 1985.

63. Defendant Cox’s unlawful acts and omission were willful and/or reckless;

Defendant Cox deliberately acted with indifference to the high probability of injury

to White. Such conduct justifies the imposition of punitive damages under MCA

§§ 27-1-220, 221 in the amount sufficient to punish Defendant Cox and to serve as

a warning to other persons and legal entities similarly situated that conduct of the

kind engaged in by Defendant Cox is unacceptable in our society and will not be

tolerated.

ATTORNEYS’ FEES

64. Pursuant to 42 USC § 1988, the Court may allow an award of attorneys’ fees

to White if he prevails on claims asserted under 42 USC § 1983.

65. White is entitled to recover reasonable attorneys’ fees for violations of state

constitutional rights under Montana’s private attorney general doctrine.

JURY DEMAND

Plaintiff demands a jury trial on all issues so triable.

COMPLAINT PAGE 10
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RELIEF

WHEREFORE, Plaintiff respectfully requests this Court to grant the following

relief:

1. For damages in a reasonable amount to compensate White fully for

deprivation of his constitutional rights;

2. For damages in a reasonable amount to compensate White fully for all

injuries;

3. For punitive damages in an amount sufficient to punish Defendants and

serve as a warning to other similarly situated persons and entities that such conduct

will not be tolerated;

4. For declaratory and injunctive relief;

5. For attorneys’ fees pursuant to 42 USC § 1988;

6. For reimbursement of costs and expenses of suit; and

7. For such further relief as the Court deems fair and just.

Dated this 19th day of August, 2022

/s/Thomas Schoenleben
BITTERROOT LAW

/s/Timothy M. Bechtold
BECHTOLD LAW FIRM

Attorneys for Plaintiff

COMPLAINT PAGE 11