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Juan C. Chavez, OSB #136428 Email: [email protected] 510 SW 5th Ave., Suite 400, Portland, OR 97204 Telephone: 971-599-3358 Facsimile: 503-715-5763 Attorney for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SCOTT ALAN RICHARDSON, and PAMELA RICHARDSON

Case No. 3:14-cv-0058-ST

Plaintiffs,

FIRST AMENDED COMPLAINT Civil Rights Action (42 U.S.C. §§ 1983); v. Malicious Prosecution; Intentional Interference CITY OF GLADSTONE; WADE BYERS; with Economic Prospects; Intentional Infliction PETER BOYCE; JAMES PRYDE; CLAY of Emotional Distress GLASGOW; SEAN BOYLE; and JOHN DOES DEMAND FOR JURY TRIAL 1-99 Defendants

This is a Civil Rights and State Tort action concerning the continuous, unconstitutional, and malicious treatment of two Oregon business owners. The Richardsons’ Civil Rights claims are based on Defendants’ continuous discriminatory enforcement of city codes against their business, which was motivated by racial and personal animus, and their retaliatory acts against the Richardsons for making complaints and engaging in protected First Amendment activities, resulting in the ultimate loss of their business in 2012 and the foreclosure of their property in

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2013. The Richardsons’ state tort claims are based on the malicious prosecution of causeless claims against the Richardsons, with the intent of injuring their business and their persons. JURISDICTION 1.

This court has jurisdiction over the subject matter of this Complaint under 42

U.S.C. §§ 1983, and 28 U.S.C. §§ 1331, 1343(a)(3), (4), and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). VENUE 2.

Venue is proper within the District of Oregon because all of the events giving rise

to this claim occurred in this judicial district, and all defendants reside in this judicial district. 28 U.S.C. § 1391(b). The acts and practices alleged herein occurred in Gladstone, Clackamas County, Oregon. PARTIES 3.

Co-Plaintiffs Scott Alan Richardson and Pamela Richardson are a married couple

currently residing in Portland, Oregon. The Richardsons formerly co-owned a convenience store in Gladstone, Oregon, named Arlington Mart. 4.

Defendant City of Gladstone is a political subdivision of Oregon in Clackamas

County, Oregon. 5.

Defendant Wade Byers is the Mayor of the City of Gladstone, and is sued in his

individual capacity. At all times relevant, Mr. Byers was acting under color of law. 6.

Defendant Peter Boyce is the City Administrator for the City of Gladstone, and is

sued in his individual capacity. At all times relevant, Mr. Boyce was acting under color of law.

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Defendant James Pryde is the Chief of Police of the City of Gladstone, and is sued

in his individual capacity. At all times relevant, Mr. Pryde was acting under color of law. 8.

Defendant Clay Glasgow is the City Planner for the City of Gladstone, and is sued

in his individual capacity. At all times relevant, Mr. Glasgow was acting under color of law. 9.

Defendant Sean Boyle is the ordinance specialist for the City of Gladstone, and is

sued in his individual capacity. At all times relevant, Mr. Boyle was acting under color of law. 10.

The Richardsons do not know the true names and capacities of Defendants sued

herein as John Does 1-99, and therefore sue these Defendants by fictitious names. John Does 199 are sued in their individual capacity, and are any City of Gladstone or other state actor personnel who exercised responsibility over, conspired with, aided and abetted subordinates, and/or directly or indirectly participated in the tortious violations as hereinafter alleged. FACTUAL ALLEGATIONS 11.

The Richardsons have owned and operated Arlington Mart since 1996 at its

Gladstone, OR location until its closure in 2012. The Richardsons also rented the rooms above the Arlington Mart to tenants. 12.

Mrs. Richardson is from Laos, and, in 2009, they contracted with Mr.

Richardson’s African-American cousin, Tim Causey, to cook and operate a wood “smoker” barbeque in the parking lot of Arlington Mart. 13.

In June 2010, Defendant City Planner Clay Glasgow first informed the

Richardsons of a neighbor complaint, and of a possible planning violation. Mr. Glasgow advised the Richardsons to mediate with the neighbors, but not one specifically.

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In July 2010, the Gladstone’s Fire Marshall observed the barbeque, but made no

comment on its alleged non-compliance. Later in the month, while on an unrelated call to Arlington Mart a Police Officer informed the Richardsons that the police had complaints about the barbeque. However, the Officer could not find a violation. 15.

In February 2011, Municipal Ordinance Specialist for the Gladstone Police

Department, Sean Boyle, notified the Richardsons of a possible code violation related to the barbeque, with a possible fine set at $500 per day of operation. 16.

Following this notice, the Richardsons attempted to address the problem by

requesting mediation with the city and by making physical changes to the barbeque that greatly confined its smoke footprint, but to no avail. The City of Gladstone at first agreed to mediation, but then reneged. Other nearby taverns also operated open-air barbeques, but those establishments either met some requirement undisclosed to the Richardsons or were never targeted for citations. 17.

In May 2011, Scott Richardson was personally cited for conducting business

activities outside of their establishment, even though the city had approved Arlington Mart’s liquor license allowing for such outside business activities. Still, the other nearby businesses that also operated barbeques were not cited. 18.

The Richardsons gained many signatures from community members on a petition

supporting their operation of the barbeque, including support from their closest neighbors. The Richardsons also utilized a collection jar to inform their customers of recent developments in their cases, and to express their displeasure with the City of Gladstone’s treatment of them. On a number of occasions, city officials or their agents had seen or heard of the Richardsons’ free

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expressions, and expressed their displeasure with the Richardsons’ speech activities in an attempt to dissuade the Richardsons from engaging in such activities. 19.

The citation was ultimately dismissed in August 2011 due to improper service. At

trial, the City Attorney of Gladstone referenced numerous complaints but presented no letters or witnesses to that effect. Additionally, on the day of the trial, just outside of the courthouse another Gladstone business began barbequing on the city sidewalk, but again these businesses were never cited. 20.

Throughout this period, the Richardsons noticed an increased police surveillance

of their property. Often, the Richardsons would either find an officer, or some city official, observing the barbeque and the Richardsons from a vehicle parked close-by or doing a drive-by. 21.

Also during this time, the Richardsons and Mr. Causey began to experience

increased racial harassment in the community. Although they sought police assistance again and again in the face of valid threats, the police failed to provide any meaningful assistance, and instead affirmed the right of the harasser to racially harass and threaten them. An undercurrent of racial discrimination pervaded the City’s response to the Richardsons’ pleas for help. Despite the Richardsons’ frequent observation of city officials monitoring their barbeque during this time, their complaints about racial harassment were largely ignored. 22.

In October 2011, Arlington Mart was cited under a different municipal code for

failing to buffer smoke from the barbeque, though no city official could provide the Richardsons with a definition of “adequate buffering.” Later, the Richardsons learned that the code cited on the fine was applicable only for businesses under review by the city planning commission. Since businesses only have to seek review by the planning commission if there was substantial change in the operation and/or hours of the business, which was not the case for Arlington Mart as was Page 5

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confirmed by a conversation with a city planning official, Mr. Siccman, the citation was meritless. 23.

Regardless, the Richardsons again made several attempts to mediate with city

officials to resolve any issues caused by their barbeque, and were again ignored. Instead, on November 4th, 2011, Ordinance Specialist Sean Boyle made an obscene gesture while driving by Arlington Mart in a city vehicle. The Richardsons complained about this conduct to Chief of Police Jim Pryde and provided witness statements to the incident. Those statements were ignored in a cursory investigation that absolved Mr. Boyle of any wrongdoing. 24.

On November 29, 2011, the Richardsons went to court over the barbeque once

again. The Richardsons were unable afford counsel, and were ordered to pay a $500 fine and to seek approval from the planning commission for their barbeque. However, again, review from the planning commission was not necessary in the case of Arlington Mart, since there was not a substantial change in the business’s operation. 25.

During this time, the racially motivated attacks against the Richardsons and their

cook intensified further, which coincided with an even starker decline in police support. This, the Richardsons later learned from disclosed emails, was because the Chief of Police Jim Pryde had arbitrarily ordered his officers to only respond to the Richardsons’ calls in groups of two or more officers. One particular incident stemming from this policy greatly affected the Richardsons: a.

On November 25th, 2011, multiple men who had previously vandalized the Richardsons’ barbeque stood in the street outside Arlington Mart and yelled direct, imminent threats and racists remarks at the Richardsons. The Richardsons phoned the police. The dispatcher said that not only were the threats constitutionally protected, but that there was no officer available to

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take the call. The men eventually dispersed after traffic backed up in the street. b.

The next morning, an officer on duty the night of the incident spoke to Mr. Richardson about the call, and explained that he was the only officer on duty that night and that he was responding to another important matter. Mr. Richardson asked him what he could do to advocate for more police resources, and the officer responded that he could go to the city council with his concerns.

c.

In December 2011, Mr. Richardson attended the city council meeting, and spoke to the council about the dire lack of police coverage in Gladstone. The officer who had told him about being the only officer on call the night of the incident also happened to be in attendance, and spoke to the city council after Mr. Richardson finished. The officer changed his story, telling the city council that Mr. Richardson was mistaken, and that there were actually two officers on duty.

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The Richardsons believe that had there been no arbitrary policy against single

officer responses to their calls, the Richardsons would have had adequate police coverage in this and other unambiguously dangerous situations. This policy continued to disrupt the Richardsons’ business activities, embolded their racist assailants, and endangered their lives through to the dissolution of Arlington Mart in July 2012. 27.

In December 2011, not wishing to spend more energy fighting and appealing the

ticket, Mr. Richardson again contacted County Resolution Services to seek a meeting with city

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officials to clarify which regulations the barbeque was subject to and which permits would be necessary. The city, again, refused to countenance mediation. 28.

The Richardsons also contacted the State of Oregon’s Fire Marshall, DEQ, and

the city manager seeking information on the applicable regulations and permit procedures, to no avail. The Fire Marshall indicated that the only codes regarding barbeques applied to apartment building balconies, and not businesses. The DEQ likewise said there were no restrictions on barbeques, but advised that to mitigate any possible disturbances the Richardsons should move their barbeque and lengthen the smoke stack, actions that the Richardsons had taken earlier in the year. 29.

In January 2012, the City of Gladstone issued another citation, despite the fact

that Richardsons had installed a device that reduced the amount of smoke emitted from their property. Still, several other businesses located in the same zoning district continued to operate barbeques without incident, including two barbeques directly across the street from Gladstone’s City Hall. Ignoring those businesses, officers and city officials unevenly focused on the Richardsons’ activities, and performed persistent, invasive surveillance of their property. 30.

The Richardsons sought legal counsel, whom mailed an ORS § 30.275 Tort Claim

Notice on January 26, 2012 to Mayor Wade Byers, Administrator Pete Boyce, Police Chief Jim Pryde, and the City of Gladstone. 31.

On April 3, 2012, the Richardsons once again were in court over the barbeque.

This time, with aide of legal counsel and a reporter from The Skanner, a regional newspaper, the City relented. The City Attorney for Gladstone proposed to have five test burns to see if the Richardsons’ barbeque modification sufficiently mitigated the smoke, and have the Richardsons appear before the city planning committee for approval. This, the Richardsons later learned Page 8

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through emails attained from Clackamas County’s public record, was because City Planner Glasgow wished to have the Richardsons brought before the planning committee, so he could promptly and arbitrarily revoke Arlington Mart’s business license. Also, at trial, City Planner Glasgow revealed that his sole source of complaint was a non-resident owner of an empty duplex adjacent to Arlington Mart. In the past, this non-resident owner had confronted Mr. Richardson’s cousin, Mr. Causey, to launch into racist tirades against him and the Richardsons. 32.

The Richardsons agreed to coordinate a meeting with the city officials so that they

may observe the size of the smoke plume, and asked the City Attorney to plan a meeting with City Planner Clay Glasgow. The City Attorney attended one such test and even remarked that the smoke plume was negligible. However, no city official made an effort to attend the subsequent tests despite prior adequate notification from the Richardsons as to the time and date set. Additionally, despite repeated requests to do so, the City Attorney never arranged a meeting with Mr. Glasgow. 33.

On May 22, 2012, the Richardsons appeared in court for a determination on the

ticket. The City Attorney noted that the barbeque emitted very little smoke, but that the Richardsons had been uncooperative with the test dates and had not met with City Planner Glasgow. The judge dismissed the ticket with no conditions, including no planning committee review. 34.

Ultimately, the financial toll of continuously and unfairly litigating these issues

with the Defendants was too grave, and Arlington Mart was dissolved in July 2012. Following this loss, the Richardsons’ business properties were foreclosed upon and sold in January of 2013, resulting in further economic injury from the loss of rental income. Because of the loss of their

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business and properties, the Richardsons could no longer pay the debts owed by their business, and entered into personal bankruptcy in June of 2013. CLAIM 1: VIOLATION OF 42 U.S.C. 1983 (DEPRIVATION OF PROPERTY INTERESTS WITHOUT DUE PROCESS OF LAW) 35.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 34. 36.

At all times relevant, the Richardsons had a property interest in their business,

Arlington Mart, which was located, in Gladstone, Clackamas County, Oregon. 37.

The Defendants are all persons within the meaning of 42 U.S.C. 1983.

38.

The Defendants failed to give adequate notice to the Richardsons as to the

standards required for operating their barbeque on their property. 39.

The Defendants continuously sought to arbitrarily deprive the Richardsons of

their property interest by subverting their attempts to mitigate any possible or alleged nuisance caused by the barbeque. 40.

The statutes used by the Defendants to justify their actions either lacked relation

and applicability to the Richardsons, or were impermissibly vague on its requirements. 41.

The Defendants attempted to use the city planning committee process in bad faith

to deprive the Richardsons of their property interest. 42.

The 14th Amendment to the United States Constitution and Article I, section 10

of the Oregon Constitution restrict the deprivation of a property without due process of law. 43.

The Defendants denied the Richardsons their procedural due process rights

through their acts.

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Accordingly, the Richardsons are entitled to economic, non-economic, and

punitive damages against the Defendants named in their individual capacity, and economic and non-economic damages against the City of Gladstone, in amounts to be determined in trial. CLAIM 2: VIOLATION OF 42 U.S.C. 1983 (DENIAL OF EQUAL PROTECTION UNDER THE LAW) 45.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 34. 46.

The Defendants are all persons within the meaning of 42 U.S.C. 1983.

47.

The Defendants intentionally treated the Richardsons differently than other

business owners operating barbeques in the City of Gladstone without rational basis, either owing to the pervasive racial bias against the Richardsons and their employee, Tim Causey, or because of their personal bias against the Richardsons. 48.

The Defendants made this bias known by selectively enforcing laws against the

Richardsons and not other similarly situated businesses, by personally accosting the Richardsons with an obscene hand gesture, by continuously menacing the Richardsons with police surveillance, and by, when police presence was needed, responding in a consistently slow manner in retaliation for making First Amendment-protected statements against the city. 49.

The 14th Amendment to the United States Constitution compels state government

actors provide equal protection under the law. 50.

The Defendants’ actions violated the Richardsons’ right to equal protection under

the law by intentionally applying law to the Richardsons that the Defendants would not apply to other businesses operating barbeques.

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Accordingly, the Richardsons are entitled to economic, non-economic, and

punitive damages against the Defendants named in their individual capacity, and economic and non-economic damages against the City of Gladstone, in amounts to be determined in trial. CLAIM 3: VIOLATION OF 42 U.S.C. 1983 (RETALIATION AGAINST PLAINTIFFS FOR EXERCISING PROTECTED SPEECH RIGHTS) 52.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 34. 53.

The Defendants are all persons within the meaning of 42 U.S.C. 1983.

54.

But-for the Richardsons’ statements criticizing the City of Gladstone and pursuit

of a civil law suit, the Defendants sought to maliciously prosecute and harass the Richardsons in retaliation for making First Amendment protected statements. 55.

The 1st Amendment of the United States Constitution prohibits the State from

subjecting an individual to retaliatory actions for freely expressing oneself, and applies to State government officials by incorporation through the 14th Amendment. 56.

The Defendants retaliatory actions violated the Richardsons’ freedom of

expression, and served to chill further free expression. 57.

Accordingly, the Richardsons are entitled to economic, non-economic, and

punitive damages against the Defendants named in their individual capacity, and economic and non-economic damages against the City of Gladstone, in amounts to be determined in trial. CLAIM 4: MALICIOUS PROSECUTION 58.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 30.

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The Defendants instituted multiple actions against the Richardsons without

probable cause to do so. The actions included either inapplicable law or unsubstantiated facts provided by a single clearly-biased party, and were initiated because of a personal, malicious bias against the Richardsons. Two of the three actions were terminated in the Richardsons’ favor. 60.

As a proximate cause of Defendant’s malicious prosecution of the aforementioned

cases, the Richardsons suffered financial and emotional hardship, and the loss of their business and property. 61.

Accordingly, the Richardsons are entitled to economic, non-economic, and

punitive damages against the Defendants named in their individual capacity, and economic and non-economic damages against the City of Gladstone, in amounts to be determined in trial. CLAIM 5: TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS AND PROSPECTS 62.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 34. 63.

The Richardsons had a business relationship with Tim Causey, Arlington Mart’s

barbeque cook, and developed a prospective economic advantage through the barbeques inclusion in its activities. 64.

The Defendants intentionally sought to interfere with the Richardsons’ business

relationship and economic prospects through the improper means of constitutional violations and improper use of legal processes. As a direct effect of Defendants’ actions, the Richardsons’ lost both the advantage of operating a barbeque on its property, a business advantage that other Gladstone businesses utilize, and its ability to contract with and employ Mr. Causey. 65.

Because the Defendants’ tortious conduct, the Richardsons’ are entitled to

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individual capacity, and economic and non-economic damages against the City of Gladstone, in amounts to be determined at trial. CLAIM 6: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 66.

The Richardsons restate and incorporate here the allegations in paragraphs 1

through 34. 67.

By continually harassing the Richardsons with such overt actions as initiating

meritless cases and making obscene gestures at the Richardsons, the Defendants took actions that were of such an outrageous nature that the Defendants either should have been or were aware of its substantial certainty to severely emotionally distress the Richardsons. 68.

As a direct cause of the Defendants’ actions, the Richardsons went through the

emotional turmoil associated with constant harassment, and the loss of their business, their property, and their livelihood. Mr. Richardson particularly suffered heightened stress to the point of inducing vertigo attacks and heart-related issues. 69.

Because the Defendants’ tortious conduct, the Richardsons’ are entitled to

economic, non-economic, and punitive damages against the Defendants named in their individual capacity, and economic and non-economic damages against the City of Gladstone in amounts to be determined at trial. /// /// /// /// ///

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CONCLUSION WHEREFORE, plaintiff prays for relief as follows: a. For judgment in favor of the Richardsons against Defendants for their damages; b. For reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and c. For such other and further relief as may appear just and appropriate. DATED: May 27th, 2014 /s/ Juan C. Chavez___________ Juan C. Chavez, OSB #136428 (971) 599-3358 Attorney for Plaintiff

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