In separate motions to dismiss, Assistant Attorney General David Lochabay said Jin Dong Wang “failed to plead sufficient factual allegations” against DPS and former Commissioner Santiago F. Tudela.
A third defendant, former Police Officer Jesse Dubrall, had yet to submit his response to Jin Dong Wang’s lawsuit.
Lochabay said the claims against DPS are “fatally defective,” and Tudela was
“entitled to the defense of qualified immunity.”
After the incident on Oct. 18, 2010, Lochabay said DPS conducted an investigation and Dubrall subsequently resigned from the department.
DPS cannot sue or be sued, according to Lochabay, since the department is a line agency of the CNMI’s executive branch of government.
Lochabay said the “commonwealth should be substituted as the real party in interest, and the caption should be changed to reflect this.”
He added: “Mr. Tudela is entitled to qualified immunity for the claims presented against him individually. Government officials, when performing discretionary functions, are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reason person would have known.’ ”
In his complaint, Wang is asking for at least $100,000 for general, consequential and compensatory damages, including pain, suffering and emotional distress; punitive damages; injunction directing DPS to implement procedures to prevent the use of excessive force and assault of arrested persons in the future; costs and attorney fees; and other relief.
Wang’s lawsuit alleges assault and battery, false arrest, emotional distress, violation of civil rights under U.S. and CNMI constitutions and negligence.
According to the complaint: “As a proximate result of defendant Dubrall’s use of unreasonable force, Mr. Wang suffered injuries on his head, abdomen, buttocks, and legs. He felt dizzy, weak and nauseous. He suffered concussion, rib contusion, spine contusion, blurred vision and post-traumatic nightmares. He was also in a state of shock, was very nervous and frightened as a result of the assault. These caused him sleepless nights. The assault caused Mr. Wang’s physical injuries requiring past, present and future medical care, lost wages, pain and suffering, and loss of enjoyment of life and other injuries and damages.”
Wang was mistaken by authorities for another individual who was facing “ice” charges and was residing in the same barracks in As Lito where the plaintiff was staying.
