2011.8.26 Jaguars Lawsuit

8/4/2019 2011.8.26 Jaguars Lawsuit

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

McALLEN DIVISION

JGC EDINBURG LLC, a TexasLimited Liability Company,

Plaintiff,

v.

THE CITY OF EDINBURG, a TexasMunicipal Corporation,

Defendant.

Case Number _____________

ORIGINAL COMPLAINT FORDECLARATORY ANDINJUNCTIVE RELIEF AND

DAMAGES

COMES NOW PLAINTIFF JGC EDINBURG LLC, a Texas Limited Liability

Company, by and through the undersigned counsel and, based upon knowledge of its

own acts and upon information and belief with respect to the acts of others, complains

as follows:

____________________________________________________________________________________________________________________________________________________________

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ORIGINAL COMPLAINT

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K:\Files\Foster\Edinburg\11-002-p-Complaint.wpd

Case 7:11-cv-00259 Document 1 Filed in TXSD on 08/26/11 Page 1 of 15


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INTRODUCTION

This is an action challenging activities by the City of Edinburg, Texas in

violation of the rights afforded the Plaintiff by the First and Fourteenth Amendments

of the United States Constitution and Article I, Section 8 of the Texas Constitutionseeking redress in the form of declaratory and injunctive relief, damages and

attorneys fees under 42 U.S.C. 1983, the Civil Rights Act of 1871, 42 U.S.C.

1988, Civil Rights Attorneys Fees Awards Act of 1976 and 28 U.S.C. 2201, et

seq.,the Declaratory Judgment Act. Also included are closely related claims under

Texas law over which this court has jurisdiction pursuant to 28 U.S.C. 1367.

JURISDICTION AND VENUE

1. Plaintiff seeks declaratory and injunctive relief against Defendant City

of Edinburg, Texas, a Texas municipal corporation (the City), pursuant to 42 U.S.C

1983 on the grounds that Defendant, by its conduct and by the Citys ordinances,

has violated, and has threatened to violate, rights secured to Plaintiff by the

Constitution of the United States. Accordingly, Plaintiff invokes this Courts federal

question jurisdiction conferred by 28 U.S.C. 1331. Additionally, because the relief

described above is sought pursuant to 42 U.S.C. 1983, this Court also has jurisdic-

tion under 28 U.S.C. 1343.

2. Because this Court has jurisdiction to address the controversy before it

28 U.S.C. 2201 grants the Court authority to declare the rights of the parties before

it; and 28 U.S.C. 2202 authorizes the Court to grant such further relief, including

injunctive relief, as the Court may deem necessary and proper.

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3. Plaintiff also has stated claims under the Constitution and laws of the

State of Texas because the defendant has violated rights secured thereunder. Those

claims are so related to the other claims in this case, over which this Court has

original jurisdiction, that they form a part of the same case or controversy underArticle III of the United States Constitution. Accordingly, this Court has

supplemental jurisdiction over those claims pursuant to 28 U.S.C. 1367.

4. Venue is proper in this district pursuant to 28 U.S.C. 1391(b)(1 & 2)

because the only Defendant resides in this district and because a substantial part of

the events or omissions giving rise to the claim occurred and a substantial part of

property that is the subject of the action is situated in this district. Venue is proper

in this division pursuant to the Local Rules of this Court because the action arose in

Hidalgo County, Texas.

PARTIES

5. Plaintiff, JGC Edinburg LLC (Plaintiff), is a limited liability company

organized and existing under the laws of the State of Texas with its principal office

in Tarrant County, Texas.

6. Defendant City of Edinburg (Defendant or the City) is a municipal

corporation, organized and existing under the laws of the State of Texas.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

7. Plaintiff operates a business in the City of Edinburg known as Jaguars

Gold Club, located at 501 West University Drive, Edinburg, TX 78541 (Jaguars)

8. Jaguars sells non-alcoholic beverages.

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9. Jaguars also features live entertainment in the form of nude dancing

expression protected by the First and Fourteenth Amendments of the United States

Constitution, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115

L.Ed.2d 504 (1991) and Article I, Section 8 of the Texas Constitution, 2300, Inc. vCity of Arlington, Tex., 888 S.W.2d 123 (Tex. App. Fort Worth 1994).

10. The business that is now Jaguars was acquired by Plaintiff in 2010

however, it had been opened as the same species of business for approximately 20

years prior to Plaintiffs acquisition of it.

11. Jaguars is, and has been since opened by Plaintiffs predecessor, an

adult use Section 2.401 of the Citys Unified Development Code which requires

adult uses as defined in 17.206A thereof to be located in an industrial (I) or

general commercial (GC) zoning district and shall only take access from an

interior street in the Industrial (I) district; moreover, such uses must be at least 5

miles from any other adult use and at least 2,000 feet from any so-called sensitive

use listed in 2.401F,supra, such as schools, churches and playgrounds.

12. The adult use that now is Jaguars violates several of the limitations of

the Citys Unified Development Code cited above. However, because the business

was established at a location that was, at the time of its establishment, in an area of

unincorporated Hidalgo County that was a permissible location for such use but was

later annexed by the City, it is permitted to continue to operate because it is a

nonconforming use pursuant to section 6.201A.1 of the Citys Unified Development

Code.

13. The Edinburg Police Department is a department of the City, duly

authorized by the Citys Charter and the Citys Code of Ordinances.

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14. On Monday, May 2, 2011, Rolando Castaeda (Castaeda) was sworn

in as the Citys new chief of police. He previously had served as a Texas Ranger, but

had never served in the Citys police department.

15. Once Castaeda assumed the position of the Citys police chief, unableto close down Jaguars on zoning grounds, he began a campaign to eradicate Jaguars,

the only establishment in Hidalgo County offering erotic dancing entertainment

because of the erotic content of the expressive activity offered at Jaguars. Tha

campaign included but was not limited to the following:

16. Castaedas campaign began when he ordered three, marked police cars

to be posted directly in front of Jaguars for three, consecutive evenings (the time of

day when Jaguars enjoys the most patronage), Wednesday through Friday, May 25-

27, 2011. Although there may have been a legitimate reason to police the streets near

Jaguars, it was not necessary to order the police cars to be posted directly in front of

Jaguars, a tactic calculated to intimidate potential customers, thereby reducing the

number of customers patronizing Jaguars, which was Castaedas objective.

17. Castaeda placed a lawn chair in Jaguars parking lot, where he sat and

oversaw the following proceedings that he supervised:

18. On Thursday, August 18, 2011, at approximately 10:30 PM, the Citys

Chief of Police and approximately twenty of the Citys police officers (all of which

were peace officers as defined and understood in connection with Chapter 18 of the

Texas Code of Criminal Procedure) arrived at Jaguars unannounced, in possession

of a single search warrant that is Exhibit 101 to this Complaint, authorizing only to

search for certain narcotics and to arrest certain individuals.

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19. Prior to entry, one of the officers disconnected the water supply to the

building, which was not authorized by the warrant.

20. After the police turned off the water supply to the building, three of

Plaintiffs employees went outside to determine what had transpired. They wereconfronted by a number of marked and unmarked police vehicles, including an RV

(recreational vehicle) that had been converted for police use. The RV had blocked

the driveway preventing ingress and egress from Jaguars parking lot.

21. Approximately 40 uniformed officers, many in SWAT paraphernalia

and with automatic weapons, then entered Jaguars; three officers remained outside

prohibiting the three of Plaintiffs employees from re-entering Jaguars.

22. The nearly 40 officers who entered Jaguars immediately zip tied the

hands of each individual in Jaguars, meaning to restrain their hands comparable to

what would occur by placing individuals in handcuffs, except using locking plastic

strips rather than handcuffs.

23. One of the three individuals who was kept outside of Jaguars, Tony

Hadaway (Hadaway), was the on-duty manager. Upon learning that fact, several

of the officers present ordered Hadaway, who was handcuffed, to accompany them

to Jaguars office, whereupon they ordered him to unlock but not open the safe that

was located in the office. The officers then ordered Hadaway to face the wall of the

office that was opposite the safe so that he could not observe what the officers were

doing with the safe.

24. The officers removed approximately $1,500 in currency from the safe

(which consisted of all of the currency therein except single bills), along with

approximately $8,000 in club tokens; they also removed an additional but unknown

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amount of currency from Jaguars cash registers, estimated to be between $500 and

$1,500.

25. Some of the officers then seized materially every electronic device in

Jaguars, including laptop computers, I-Pads, backpacks and one managers wallet.The officers had no basis for believing that any of these items contained narcotics.

26. Article 18.06 of the Texas Code of Criminal Procedure provides (with

emphasis added):

(a) A peace officer to whom a search warrant is delivered shall

execute it without delay and forthwith return it to the proper magistrate.

It must be executed within three days from the time of its issuance, and

shall be executed within a shorter period if so directed in the warrant by

the magistrate.

(b) On searching the place ordered to be searched, the officer

executing the warrant shall present a copy of the warrant to the owner

of the place, if he is present. If the owner of the place is not present but

a person who is present is in possession of the place, the officer shall

present a copy of the warrant to the person. Before the officer takes

property from the place, he shall prepare a written inventory of the

property to be taken. He shall legibly endorse his name on the

inventory and present a copy of the inventory to the owner or other

person in possession of the property. If neither the owner nor a person

in possession of the property is present when the officer executes the

warrant, the officer shall leave a copy of the warrant and the inventory

at the place.

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27. Being personally responsible for all of Jaguars property and correctly

believing he was entitled to an inventory of seized property (although not aware of

any specific statutory provision to that effect), Hadaway specifically requested that

the officers prepare and deliver to him an inventory of the seized property, which theydeclined to do and have never done.

28. The officers seized the wallet of another manager of Jaguars, Christopher

Canseco, (Canseco), found no narcotics or any other contraband or evidence in it,

but refused to return it to him. It contained Cansecos drivers license, personal funds

and other items typically found in a personal wallet.

29. The officers kept Jaguars closed and detained all of the customers for

over four and one-half hours, which was unnecessary. In fact, the warrant could have

been executed in considerably less than an hour.

30. On the following day, Canseco telephoned the Citys police department

to inquire about two things. First, he requested the return of his wallet, to which the

police department responded that it had been lost. Second, he requested an inventory

of the seized property, which they declined to produce and have not yet produced.

31. As a proximate and legal consequence of the foregoing, Plaintiff has

suffered monetary damages arising from loss of business, deprivation of money and

property and loss of employee loyalty.

FIRST CLAIM FOR RELIEF

[Violations of Federal Constitutional Rights; 42 U.S.C. 1983]

32. Plaintiff expressly incorporates all prior allegations of this Complaint as

if separately and specifically alleged in this Claim for Relief.

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33. All of the acts and threats of the City alleged in this complaint were

under color of a statute, ordinance, regulation, custom, or usage of the City or of the

State of Texas.

34. Those acts and threats of the City caused, are causing and will causePlaintiff deprivation of rights, privileges, or immunities secured by the First and

Fourteenth Amendments to the United States Constitution.

35. The activities described herein beyond the execution of the warrant were

calculated to and in fact did interfere unnecessarily with the constitutionally protected

activity at Jaguars.

36. The seizure of Jaguars currency was not authorized by the warrant, was

without probable cause and calculated to intimidate Plaintiff.

37. All of the foregoing violated Plaintiffs rights under the First and

Fourteenth Amendments to the United States Constitution, including the right of free

speech and expression and the confiscation of property without due process of law.

SECOND CLAIM FOR RELIEF

[Violation of Article I, 8 of the Texas Constitution]


if separately and specifically alleged in this Claim for Relief..



State of Texas.

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40. Those acts and threats of the City caused, are causing and will cause

Plaintiff deprivation of rights, privileges, or immunities secured by the First and


41. The activities described herein beyond the execution of the warrant werecalculated to and in fact did interfere unnecessarily with the constitutionally protected




43. All of the foregoing violated Plaintiffs rights under Article I, 8 of the

Texas Constitution.

THIRD CLAIM FOR RELIEF

[Declaratory Relief, 28 U.S.C. 2201, et seq.]





State of Texas.

46. Those acts and threats of the City caused, are causing and will cause

Plaintiff deprivation of rights, privileges, or immunities secured by the First and


47. The activities described herein beyond the execution of the warrant were

calculated to and in fact did interfere unnecessarily with the constitutionally protected


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49. All of the foregoing violated Plaintiffs rights under the First and

Fourteenth Amendments to the United States Constitution, including the right of freespeech and expression and the confiscation of property without due process of law.

50. The City believes that the aforesaid activities were entirely consistent

with the First and Fourteenth Amendment to the United States Constitution and

Article I, 8 of the Texas Constitution.

51. Accordingly, Plaintiff is entitled to a declaration that these activities

violated the First and Fourteenth Amendments to the United States Constitution and

Article I, 8 of the Texas Constitution.

FOURTH CLAIM FOR RELIEF

[Return of Seized Property Pursuant to Texas Law ]1



53. The currency, computers and other property alleged above was seized

in violation of the First, Fifth and Fourteenth Amendments to the United States

Constitution; the City has no basis for retaining any of it.

54. Accordingly, under Texas law, Plaintiff is entitled to its return.

\\\

\\\

See State v. Thirty Thousand Six Hundred Sixty Dollars and no/100, 1361

S.W.3d 392 (Tex.App. orpus Christi 2004).

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PRAYER FOR RELIEF

A. A temporary restraining order, preliminary injunction and permanent

injunction prohibiting bad faith law enforcement activities, all according to proof.

B. An award of damages, according to proof.C. An award of costs and reasonable attorneys fees pursuant to 42

U.S.C. 1988.

Dated: August 26, 2011. Respectfully Submitted,

CLYDE DeWITTLAW OFFICES OF CLYDE DeWITT, APC

LUKE CHARLES LIROTLUKE CHARLES LIROT, P.A.

DOUGLAS M. O'BRIENLAW OFFICES OF DOUGLAS M. OBRIEN

By: /s/ Douglas M. OBrienDouglas M. O'Brien

Counsel for Plaintiff, JGC Edinburg, LLC.Clyde DeWitt

Nevada State Bar No. 9791

California State Bar No. 117911Law Offices of Clyde DeWitt,A Nevada Professional Corporation

732 South Sixth Street, Suite 100Las Vegas, NV 89101-6948(702) 386-1756Fax (310) [email protected]

(Subject to Admission Pro Hac Vice)

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Luke Charles LirotFlorida Bar Number 0714836Luke Charles Lirot, P.A.2240 Belleair Road, Suite 190Clearwater, FL 33764(727) 536-2100

Fax (727) [email protected](Subject to Admission Pro Hac Vice)

Douglas M. O'BrienLaw Offices of Douglas M. OBrien1800 Chase Bank Building712 Main StreetHouston, TX 77002(713) 222-9955Fax (713) [email protected]

____________________________________________________________________________________________________________________________________________________________

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EXHIBIT 101

Search Warrant

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15/18



16/18

2JS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as pry local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for P(For Diversity Cases Only) and One Box for Defendant

u 1 U.S. Government u 3 Federal Question PTF DEF PTF D

Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated orPrincipal Place u 4

of Business In This State

u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated andPrincipal Place u 5

Defendant(Indicate Citizenship of Parties in Item III)

of Business In Another State

Citizen or Subject of a u 3 u 3 Foreign Nation u 6

Foreign Country

V. NATURE OF SUIT (Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 610 Agriculture u 422 Appeal 28 USC 158 u 400 State Reapportionm

u 120 Marine u 310 Airplane u 362 Personal Injury - u 620 Other Food & Drug u 423 Withdrawal u 410 Antitrust

u 130 Miller Act u 315 Airplane Product Med. Malpractice u 625 Drug Related Seizure 28 USC 157 u 430 Banks and Banking

u 140 Negotiable Instrument Liability u 365 Personal Injury - of Property 21 USC 881 u 450 Commerce

u 150 Recovery of Overpayment u 320 Assault, Libel & Product Liability u 630 Liquor Laws PROPERTY RIGHTS u 460 Deportation

& Enforcement of Judgment Slander u 368 Asbestos Personal u 640 R.R. & Truck u 820 Copyrights u 470 Racketeer Influence

u 151 Medicare Act u 330 Federal Employers Injury Product u 650 Airline Regs. u 830 Patent Corrupt Organizatio

u 152 Recovery of Defaulted Liability Liability u 660 Occupational u 840 Trademark u 480 Consumer Credit

Student Loans u 340 Marine PERSONAL PROPERTY Safety/Health u 490 Cable/Sat TV

(Excl. Veterans) u 345 Marine Product u 370 Other Fraud u 690 Other u 810 Selective Service

u 153 Recovery of Overpayment Liabil ity u 371 Truth in Lending LABOR SOCIAL SECURITY u 850 Securities/Commod

of Veterans Benefits u 350 Motor Vehicle u 380 Other Personal u 710 Fair Labor Standards u 861 HIA (1395ff) Exchange

u 160 Stockholders Suits u 355 Motor Vehicle Property Damage Act u 862 Black Lung (923) u 875 Customer Challenge

u 190 Other Contract Product Liability u 385 Property Damage u 720 Labor/Mgmt. Relations u 863 DIWC/DIWW (405(g)) 12 USC 3410

u 195 Contract Product Liability u 360 Other Personal Product Liability u 730 Labor/Mgmt.Reporting u 864 SSID Title XVI u 890 Other Statutory Acti

u 196 Franchise Injury & Disclosure Act u 865 RSI (405(g)) u 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 740 Railway Labor Act FEDERAL TAX SUITS u 892 Economic Stabilizat

u 210 Land Condemnation u 441 Voting u 510 Motions to Vacate u 790 Other Labor Litigation u 870 Taxes (U.S. Plaintiff u 893 Environmental Mat

u 220 Foreclosure u 442 Employment Sentence u 791 Empl. Ret. Inc. or Defendant) u 894 Energy Allocation A

u 230 Rent Lease & Ejectment u 443 Housing/ Habeas Corpus: Security Act u 871 IRSThird Party u 895 Freedom of Informa

u 240 Torts to Land Accommodations u 530 General 26 USC 7609 Act

u 245 Tort Product Liability u 444 Welfare u 535 Death Penalty IMMIGRATION u 900Appeal of Fee Determ

u 290 All Other Real Property u 445 Amer. w/Disabilities - u 540 Mandamus & Other u 462 Naturalization Application Under Equal Access

Employment u 550 Civil Rights u 463 Habeas Corpus - to Justice

u 446 Amer. w/Disabilities - u 555 Prison Condition Alien Detainee u 950 Constitutionality of

Other u 465 Other Immigration State Statutes

u 440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

(Place an X in One Box Only)

u 1 OriginalProceeding

u 2 Removed fromState Court

u 3 Remanded fromAppellate Court

u 4 Reinstated orReopened

u 5 u 6 MultidistrictLitigation

u 7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN

COMPLAINT:

u CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY(See instructions):

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

GC EDINBURG LLC

Tarrant County

yde DeWitt, Law Offices of Clyde DeWitt, 732 South Sixth Street,ite 100, Las Vegas, NV 89101-6948. (702) 386-1756.

THE CITY OF EDINBURG

. . .

a nt a eges a - a t aw en orcement act v t es y e en ant.

08/26/2011 /s/ Douglas M. O'Brien

Case 7:11-cv-00259 Document 1-1 Filed in TXSD on 08/26/11 Page 1 of 1


17/18

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Southern District of Texas

JGC EDINBURG LLC, a Texas Limited Liability

Company,

THE CITY OF EDINBURG, a Texas MunicipalCorporation,

THE CITY OF EDINBURG, 415 W. University Drive, Edinburg, Texas 78540

Clyde DeWitt, Law Offices of Clyde Dewitt, 732 South Sixth Street, Suite 100

Las Vegas, NV 89101-6948.



18/18

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for(name of individual and title, if any)

was received by me on (date) .

u I personally served the summons on the individual at (place)

on (date) ; or

u I left the summons at the individuals residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individuals last known address; or

u I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of(name of organization)

on (date) ; or

u I returned the summons unexecuted because ; or

u Other(specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00


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2011.8.26 Jaguars Lawsuit