Thad M. Guyer (82144)

T. M. Guyer & Friends

116 Mistletoe Street

P O Box 1061

Medford, OR 97501 Filed September 4, 2001

(541) 773-9656

Fax: 1 888 866 4720

email: tmguyer@tmguyer.com

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LESLIE K. WEAVER and

KARLA T. PODLECH

Plaintiffs

5. No. 01-3086-CO

OF CIVIL RIGHTS

City of Shady Cove, a political subdivision

of the State of Oregon, ROBERT T. Anderson,

James Johnson, and George Bostic

Defendants

______________________________

INTRODUCTORY STATEMENT

This is a civil rights action under 42 USC sec. 1983 by two residents of Shady Cove, Oregon against the City of Shady Cove, and three of its highest public officials. Plaintiffs seek compensatory and punitive damages, and declaratory and injunctive relief, based upon a continuing course of denial of plaintiff’s city, state and federal rights and privileges, and upon a continuing course of harassment and intimidation, creating a hostile living environment, directed against them by defendants because of plaintiffs’ assertions of those rights and privileges. Plaintiffs allege that the acts and omissions of the defendants constitute a violation of their rights and privileges under the First Amendment with respect to freedom of speech, and under the Equal Protection and Due Process clauses of the Fourteenth Amendment of the United States Constitution.

1.  
2. I. PARTIES

1. Plaintiffs are residents of the State of Oregon and the United States of America.

2. Defendant CITY OF SHADY COVE (hereafter "defendant CITY") is a political subdivision of the State of Oregon. At all times material to this complaint, the defendant CITY acted through the defendants Anderson, Johnson, and Bostic, and approved, ratified and adopted all acts and omissions against the plaintiffs.

3. Defendant Thomas Anderson at all times material hereto was an agent and elected official of the defendant CITY, holding the office of Mayor. Defendant James Johnson at all times material hereto was an agent and employee of the defendant CITY, holding the position of Chief of Police. Defendant George Bostic at all times material hereto was an agent and employee of the defendant CITY, holding the position of Public Works Director. All actions and omissions complained of herein against said defendants were taken by them under color of state law, and pursuant to the ordinances, policies and practices of the defendant CITY.

4. The individual defendants are sued herein for money damages in their individual capacities.

5. The individual defendants are sued herein for equitable and injunctive relief in their official capacities.

II. JURISDICTION

6. Jurisdiction over the claims asserted is vested in this court under the 28 USC sec. 1331 on the basis that this complaint presents substantial federal questions under the First, and Fourteenth Amendments of the Constitution of the United States.

III. VENUE

7. Venue lies in this United States District Court under 28 U.S.C. sec. 1991(b) and (c) by virtue of the fact that defendant CITY is situated in, and the conduct complained of herein occurred, in this judicial district.

IV. GENERAL FACT AVERMENTS

8. Plaintiffs moved to the City of Shady Cove in May, 2000, and have purchased and occupy residential real estate there.

9. Within several months of moving into their home, the dogs of a neighbor, Mr. John Tallman, began running at large and intruding into the property and privacy of plaintiffs. After unsuccessfully attempting to resolve these trespasses with said neighbor, plaintiffs began and continued contacting the defendant CITY’s officials, including but not limited to the defendants ANDERSON and JOHNSON. Said defendants failed and refused to take any official action to enforce applicable city ordinances for more than one month, and then took only partial and ineffective action thereafter solely because of repeated complaints and demands by plaintiffs.

10. Despite many repeated violations of the city’s ordinances prohibiting dogs from running at large and creating a public nuisance, the defendant CITY and its officials failed and refused to enforce city ordinances numbers 165 and 166, which required the defendant CITY to investigate and bring appropriate administrative and judicial actions to abate the referenced public nuisance and animal violations. The father of the referenced neighbor is Mr. Phil Tallman, who has been a significant private contractor on various city projects, and who is a personal friend and/or associate of the defendants ANDERSON and/or JOHNSON. Because plaintiffs would not cease and desist in their complaints and demands for enforcement of the city’s ordinances, and because said defendants considered plaintiffs to be outsiders making complaints against long-time and established city residents, plaintiffs incurred the irritation, animosity and ill-will of defendants ANDERSON and/or JOHNSON, which manifested in numerous ways, including but not limited to the following:

1. 1. 1.  
      2. On or about 9/7/00, defendant JOHNSON told plaintiff Weaver he should acquire a "fitted bullet proof vest";
      3.  
      4. On or about 9/10/00, defendant JOHNSON told plaintiff Weaver that other neighbors vouched for the inoffensiveness of the straying dogs to them, and on this basis he would not take action;
      5.  
      6. On or about 10/19/00, defendant JOHNSON summoned plaintiff Weaver at the close of a public meeting, to schedule and appointment to privately complain about the lack of animal and nuisance enforcement, by shouting "Weaver, front and center" in a manner intended to intimidate and humiliate the plaintiffs in the presence of the city council members and audience;
      7.  
      8. On or about 3/16/01 defendant JOHNSON stated to listeners, including Phil and John Tallman, in a public hardware store that plaintiff Weaver should wear a bullet proof vest, and that the plaintiffs had been "run out" of their former place of residence. In fact, on or about 11/2/98 plaintiff Podlech had filed suit in the Circuit Court of Jackson County against Glenwood Mobile Home Community for housing code violations, but neither plaintiff had ever been forced or coerced from their prior residences.

11. Based upon plaintiffs’ continuing complaints and demands for city code enforcement, a few citations were issued to Mr. Tallman for failure to control his dogs. On or about May 16, 2001, plaintiffs reported to city officials that one of these citations had disappeared from the court docket and record, and city officials suggested the same may have been "lost".

12. On or about June 7, 2001, plaintiffs advocated on a matter of public concern at a city council meeting that misspending of funds approved by voters under local ballot Measure 15-80 had possibly been committed by the defendant ANDERSON and other city officials, which had the effect of under-funding the city police department salaries. On or about June 25, 2001, plaintiffs complained about this misspending in a formal letter to the Oregon Department of Revenue.

13. On or about June 27, 2001, plaintiffs complained to city officials that they were being harassed based on the above referenced complaints, demands and protected activity, and complained about the above referenced alleged "lost" citation.

14. On or about July 17, 2001, plaintiffs complained to city officials that a neighbor, Mr. David King, had erected a fence on his property, which obstructed safe view of the street from their driveway, which could potentially cause a traffic accident, since plaintiffs would have to back into the street without adequate lookout.

15. Because of the above complaints and demands referenced in paragraphs number 11 through 14, and because said defendants considered plaintiffs to be outsiders making complaints against long-time and established city residents, the defendants engaged in a course of retaliatory acts and omissions against the plaintiffs, including but not limited to the following:

1. 1. 1.  
      2. Commencing on or about June 27, 2001, the defendant JOHNSON, and other police and city officials began slow and conspicuous drive-bys and observations of plaintiffs and their home for the purpose of harassment and annoyance;
      3.  
      4. On or about July 19, 2001, the defendant ANDERSON directed an angry admonition to plaintiffs in a public meeting that he "took great exception" to their statements of concern over misspending of police department funds, and that he would not address those concerns, and told plaintiffs any further concerns on the matter could only be presented to the city attorney, and not to duly elected representative sitting in public session;
      5.  
      6. On or about July 26, 2001, the defendant BOSTIC mailed a letter to plaintiffs stating that, in the course of responding to plaintiffs safety complaints about Mr. King’s fence, the city had determined that plaintiffs’ own open rail fence, which obstructed no view, was technically out of compliance with City Ordinance No. 111-1, in that the top rail was too high, and that plaintiffs must correct the non-compliance;
      7.  
      8. On or about August 6, 2001, the defendant BOSTIC issued a formal notice of violation over plaintiffs’ fence, as described in paragraph 15.3, and ordered that they must correct the violation within 10 days;
      9.  
      10. On and after August 6, 2001, the defendant BOSTIC has failed and refused to respond to plaintiffs’ written inquiry as to whether the city was aware of numerous apparent fence ordinance violations throughout the city limits, including those listed by address in plaintiffs’ written inquiry.

V. FEDERAL CLAIMS

CAUSE OF ACTION: DEPRIVATION OF CIVIL RIGHTS

COUNT 1. FIRST AMENDMENT SPEECH

16. Plaintiffs reallege paragraphs numbered 1 through 15 above.

17. The above referenced complaints, demands for city code enforcement, and concerns about proper uses of public funds constituted protected speech and protected activities under the First Amendment of the United States Constitution. The defendants were aware of all of said protected speech, and were motivated, in whole or in part, to engage in the referenced course of retaliatory acts and omissions because of said protected speech and activities.

18. The defendants, acting under color of state law as set forth above, abridged plaintiffs’ First Amendment rights of speech and protected activity by engaging in the referenced course of retaliatory acts and omissions, in violation of 42 USC sec. 1983.

COUNT II. EQUAL PROTECTION OF THE LAW

19. Plaintiffs reallege paragraphs numbered 1 through 15 above.

20. The plaintiffs had a right under the Equal Protection Clause of the Fourteenth Amendment to be treated in the same manner as other residents of Shady Cove with respect to use of redress to the Police Department and Public Works Department, and with respect to enforcement of the city’s zoning law governing allowable fencing.

21. The defendant BOSTIC was aware at all time material hereto that many residences within the city limits had fences which were of similar and greater height than that of plaintiffs, and located as close and closer to public roads than that of plaintiffs.

22. Acting under color of state law as set forth above, the defendants abridged plaintiffs’ Fourteenth Amendment rights of equal protection of the law, both as to their constitutionally protected rights and privileges, by engaging in enforcement activities against the plaintiffs in a discriminatory manner different from enforcement activities against similarly situated persons, and said defendants being further motivated in part by their personal animosities toward plaintiffs, and perception of them as outsiders. Because defendants have no rational or legitimate basis for said discrimination, enforcement activities against the plaintiffs are and have been in violation of 42 USC sec. 1983.

COUNT III. DUE PROCESS OF THE LAW

23. Plaintiffs reallege paragraphs numbered 1 through 15 above.

24. Shady Cove Ordinance111-1, Section 6.4(D) provides in pertinent part as follows:

The terms and provisions of this ordinance neither define nor give fair warning to residents as to how or from what location "grade" in the context of the fence ,and "front yard setback area" are to be measured, nor as to what fences may be considered "open mesh deer fencing". Nor does the ordinance give fair warning to residents having fences which in no manner obstruct or screen views, that such fences are prohibited.

25. On information and belief, plaintiffs allege that the referenced ordinance has neither been adopted and enacted within the requirements of Oregon law and/or the City of Shady Cove charter, nor been delegated for enforcement by lawful processes to the office of the Director of Public Works.

26. Due to the vagueness and over broadness of the above language of the referenced ordinance, and the city’s enforcement activities despite said ordinance not having been lawfully enacted and/or lawfully delegated for enforcement purposes, the ordinance both on its face and as applied is in violation of the Due Process Clause of the Fourteenth Amendment, and therefore, of 42 USC sec. 1983.

VI. PUNITIVE DAMAGES AND ATTORNEYS FEES

27. The actions and conduct of the individual defendants in depriving plaintiffs of their rights and privileges under the United State Constitution, were knowing and willful or malicious, and/or constituted a reckless disregard of the plaintiffs’ rights and privileges, and in order to deter such conduct in the future by the defendants and similarly situated governmental officials, punitive and exemplary damages should be awarded.

28. Plaintiffs are entitled to their reasonable attorney fees under 42 USC sec. 1988.

VII. REQUEST FOR RELIEF

Wherefore, plaintiffs requests that the following relief be granted:

1. 1. General damages for emotional distress, humiliation and embarrassment in the amount of at least $50,000;
   2. Punitive damages in an amount to be determined at trial;

3. A declaratory judgment that the referenced fence ordinance is unconstitutional on its face, and/or as applied to plaintiffs, and the issuance of a permanent injunction against enforcement of the same against plaintiffs; and

4. All other relief which law and equity may provide, including the costs, expenses and

disbursements of this action, and reasonable attorney fees under 42 USC sec. 1988.

Respectfully submitted,

___________________________________

Thad M. Guyer (82144)