Bivens v. Bryant Lawsuit

7/23/2019 Bivens v. Bryant Lawsuit

1/12

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

FILED

E

U S DISTRICT COURT

STERN DISTRICT ARKANSAS

UG

172 15

JAMES W

M ~ c . LERK

MARY BIVENS, d/b/a B M MOBILE HOME PARK

By: ~ < J ? L -

PLAINTIFF EP CLERK

vs.

CITY OF BRYANT, ARKANSAS DEFENDANT

This

case assigned to i s t r ~ t Joogp } Aar

5ho

JI

and to Magistrate

Judge

HtUrl

COMPLAINT .

COMES THE PLAINTIFF, MARY BIVENS, d/b/aB M MOBILE HOME PARK, and

for her cause of action against the defendant states and alleges as follows:

I

Plaintiff is a citizen

of

the City

of

Bryant, Saline County, Arkansas who resides on

Arkansas State Highway 5 North

just

past its intersection with Shobe Road

at

a postal address of

9404 State Highway 5 North, Alexander, AR 72202, the said highway being

at

that point an

extension

of

historic Stagecoach Road, as the thoroughfare is sometimes locally designated. She

and her late husband, Bennie Bivens, built and opened early in the year 1970 the mobile home

park that is the subject of this claim on property adjacent and contiguous to their home. The

couple together, and plaintiff alone after her husband's death in 2001, have continued to operate

this business without interruption.

II

Defendant is an Arkansas City of the First Class with administrative offices located at

219 Southwest Third Street, Bryant,

R

72022 whose agent for service

of

process at that address

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 1 of 11


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is the Hon. Jill Dabbs, Mayor, with a certified copy to Mr. Chris Madison, Bryant City Staff

Attorney, also at that address.

III.

B M Mobile Home Park consists of approximately 8.5 acres

of

flat, partially forested

non-flooding land

of

a consistency and contour particularly conducive to the placement and

maintenance

of

double wide and lesser residential trailer dwellings, some

of

which are owned

by their tenant occupants and others by plaintiff. Tue majority

of

the clients of B M are persons

of

Hispanic descent who are employed in Bryant and nearby communities as semi-skilled and

day laborers at or slightly above the minimum wage, making it difficult for

them

to find

affordable housing for themselves and their families, which often include small children. B M

Mobile Home Park is one of a very few area lodgings available to such persons.

IV.

All of

plaintiffs

state, federal and county taxes are current and plaintiffs business has

been in good standing with all agencies since a sewerage discharge dispute was resolved with the

Arkansas Department

of

Environmental Quality (ADEQ), discussed

infra

in December 2010

requiring the construction at plaintiffs expense

of

a state of the art waste disposal pipeline which

was completed

and

accepted

by

defendant on or about January 1 2012.

v

This is an action for violation of plaintiffs civil rights under the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution, 42 U.S.C. 1983, the Arkansas Civil

Rights Act

of

1993, the Arkansas Constitution, the Arkansas common law torts of trespass, false

arrest, conversion, intentional infliction

of

emotional distress and interference with an

advantageous business relationship by defendant's managerial officials, officers, employees and



3/12

agents through,

inter alia

the selective

and

capricious compilation and submission

of

inflated

utility invoices to plaintiff for water and sewerage services which must be passed on to her

tenants, arbitrary and selective building code and animal control enforcement citations, and the

selective and arbitrary stopping, inspection, searching and citation

of plaintiffs

Hispanic lessees

and their guests and others of Hispanic descent, and the impoundment of their vehicles for the

retrieval of which they must pay towing and storage fees, and otherwise engaging

in

the studied

harassment of persons of Hispanic heritage for the purpose of forcing them to leave the City of

Bryant. The attendant impact on

plaintiffs

business from these actions against her tenants has

been financially devastating.

VI.

During the fall and winter

of 2010- 2011 plaintiff expended more than 250,000.00 to update

the B M Mobile Home Park sewage system with the construction of a completely new, high

quality, state-of-the- art effluent pipeline and tie-in to connect B M's to the defendant's

sewage system near Interstate 30. A full-time work crew excavated several tons of rocky soil

following which the pipeline was laid in strict compliance with Department

of

Environmental

Quality and Highway Department regulations. Defendant mandated that the plans and

specifications the project be approved by its Director

of

Public Works (Water & Sewer), Mr.

Monty Ledbetter, as comporting with the connection and flowage requirements of defendant's

then-existing sewage system. Throughout the more than three (3) months of construction,

plaint iff and her contractor were in constant contact with the said Ledbetter, who frequently

performed on-site inspections of the progress of the work and granted his approval, finally

accepting the entire project

on

or about January 1 2012.

On

numerous occasions, Mr. Ledbetter

commented that the

new

pipeline would be a boon to the city's sewage system since other



4/12

residences would be able to connect to it for disposal of their own waste. He stated that some

allowance would be made in plaintiffs future water and sewer billings in light of this fact. While

plaintiff was under a settlement agreement with ADEQ to reconstruct her disposal system, and

no specific money amount was stated by the defendant's representative in this regard, Mr.

Ledbetter's assurances prompted plaintiff to demand

of her contractor the highest quality

of

material and workmanship.

VIL

Notwithstanding the forgoing, beginning within months of the completion

of

the new

pipeline and continuing to the present day, a period of more than three (3) years, the defendant

has not only not provided any billing allowance to plaintiff but has more than doubled its

charges to her with no allowance, in spite of the connection of an untold number of additional

residences to the line constructed by her, a connection surcharge

of

39,000.00 (an arbitrary levy

which she nonetheless dutifully paid) and a number of service economies claimed by the

defendant to reduce water and sewerage charges to its other residents. When in 2013 plaintiff

complained of the increases to the defendant, she was told that the primary reason for them was a

series of faulty meters it had installed which for various reasons did not properly register B M's

usage. She was informed that the breakdown

of

these devices made it impossible correctly to

gauge flow, which the defendant could only determine by estimation. In just over one year

defendant replaced its meters for p lain tiffs business on three separate occasions. On March 26,

2014 plaintiff wrote to the said Ledbetter,

Mr

Robert Griffin, the Chairperson of its Water and

Sewer Advisory Committee, and Mr. Buddy Fowler, its utility billing director, recounting the

foregoing facts and requesting an accounting of her water and sewer service accounts, including



5/12

the precise service and maintenance history

of

the three replaced meters and the effects of their

discrepancies

on

her billings. EXHIBIT (I). She asked to be told what amounts were billed

on

estimates as opposed to actual meter data and how those estimates were arrived at. She further

asked to be informed

of

what other residences had been permitted to connect with the

new

pipeline and for copies of their usage charges so she could compare them with her own. She

renewed her request for some billing allowance. The defendant, through Mr. Ledbetter,

responded

on or

about April 15, 2014 with duplicate copies of her previous invoices but provided

no direct response to her information requests. No names of additional users were provided nor

were copies

of

their invoices. Plaintiff responded

on

April 30, 2014 with an itemized reiteration

of her requests to which no response has been received.

VIII.

Defendant s code enforcement personnel, including one Doug Smith and others, have

undertaken a sustained campaign

of

harassment of plaintiffs Hispanic tenants for minor

discrepancies, such as cracked window panes, the absence

of

2-step bannisters, unsealed portions

of

roofing, yard debris and the like. Threats

of

home confiscation, closure and removal are

communicated to Hispanic homeowners and their stay-at-home spouses, many tending small

children.

IX.

Defendant s animal control unit has on repeated occasions ticketed to Municipal Court

owners of pets in Hispanic households allegedly found without leashes on B M property or

whose collars and tags were temporarily removed for grooming. One dog, which had been a

member of its household for more than five (5) years, was seized and taken to the city pound

where, due to a notification delay, its owner was unable to claim it during working hours before



6/12

it was euthanized. Citations against owners of other animals,

if

they retain counsel, are routinely

dismissed without a hearing.

x

Defendant 's police officers, including one Scott Johnson and others, routinely pull over

and inspect vehicles with Hispanic occupants entering or leaving B M Mobile Horne Park or

leaving or entering the highway at Shobe Road. Identification papers, including drivers licenses,

entry visas, work permits and other immigration documents are demanded for inspection without

probable cause indicating the commission of a criminal or traffic offense or improper

immigration status. Officers often congregate in their squad cars on the vacant lot at Highway 5

and Shobe Road immediately next to plaintiff 's property from which they initiate these forays,

some ofwhich result in the seizure, towing and impoundment of vehicles, necessitating payment

of

exacting tow and storage fees in addition to fines for minor infractions, such as sight-safety

impediments, no insurance or title papers, and the like for which such severe preliminary

sanctions are not normally imposed on others.

XI.

The actions hereinabove described

of

the defendant's personnel were committed y

them in the course and scope

of

their employment or agency and under the official color

of

their

offices as empowered y the defendant, and with the awareness and/or encouragement of their

superiors, and are, therefore directly imputed to the defendant as their employer, master and/or

principal,

respondeat superior

XII.

As a direct and proximate result

of

this concerted campaign

of

intimidation and

harassment y the defendant, plaintiff has suffered a loss

of

tenants and has been impeded in her



7/12

ability to engage replacements. From some 6 lot-space leases in full payment performance on or

about January 1, 2012 B&M Mobile Home Park has fallen to fewer than 45, a loss o more than

10, 000.00

n

monthly income. Virtually to a person, departing tenants ascribe their decisions to

quit their tenancies to arbitrary police and code enforcement harassment such as that above

described and to the higher rates plaintiff has been forced to pass on to them for water and

sewage utility services. Over the past three (3) years, this has cost plaintiff more than

430,000.00 in lost revenue on top o the excessive water and sewerage charges themselves, for

all

o

which she prays compensatory damages in an amount reasonably and fairly to compensate

her for her losses.

XIII.

As a direct and proximate result

o

the said actions

o

the defendant plaintiff has suffered

a substantial loss in the market value

o

her property, impairing her ability to sell it at a fair and

reasonable price through two (2) separate commercial realtors over the past three (3) years,

increased administrative and managerial costs in its operation and in attorneys fees, as well as

harm to the property's reputation and public image as a secure family lodging space for working

people, for all o which she also prays compensatory damages in fair and reasonable amount..

XIV

As a direct and proximate result o the defendant's actions, plaintiff has suffered mental

anguish and emotional distress, headaches, nervousness, loss o sleep and depression, including

the fear o bankruptcy and the loss o her entire estate built up over many years, for all o which

she also prays compensatory damages in a fair and reasonable amount.



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xv

The above described actions

of

the defendant through its employees, officers and agents

constituted willful and wanton misconduct, for which plaintiff further prays for an award of

exemplary damages.

WHEREFORE, ALL PREMISES CONSIDERED, plaintiff prays judgment against the

defendant in an amount of damages greater than 75,000.00 exclusive of interest and costs

sufficient to compensate her for her losses, for an Order permanently enjoining the defendant

from such conduct in the future and for all other appropriate relief to which she shall

be

entitled.

Plaintiff further prays for an award of exemplary damages against the defendant in an

amount sufficient to deter it and other municipalities and those acting under co1or

of

their

authority from such conduct in the future.

Plaintiff Moves the Court for an Interim Order restraining the defendant from suspending

water

and

sewage services to her property pending the resolution of this cause and for a

Scheduling Order expediting discovery, and for a preliminary Hearing.

Plaintiff reserves the right to plead further upon discovery.

SandyS McM

AR

Bar

No. 66

49



9/12

Mr. Monty Ledbetter

Mary

Bivens

B M Mobile Home Park

9404 Highway 5 North

Alexander, AR 72002-8527

March 26, 2014

Public Works Director (Water Sewer).

City

of

Bryant Administration Building

210 SW 3d Street

Bryant, AR 72022

Mr. Robert Griffin

Chair, Water Sewer Advisory Committee

City

of


210 SW

3d

Street

Bryant,

AR

72022

..

Mr. Buddy Fowler

Water Sewer Billing Director

City of Bryant Administration Building

210 SW 3d Street

Bryant, AR 72022

. .

Re: Accounts 003983-000 010026-000 Irregular Exorbitant Water Sewage

Charges; Repeated Malfunctions

of

Successive City Meters, Refusal

of

City to

Apportion Credit to Homeowner for Costs of Installation of State of the Art

Pipeline Tie-In System Funded by Her But Used by City to Service Other

Multiple Patrons; Request for Defective Meter History,Accounting Adjustment

Gentlemen:

This is respectfully to request, pursuant to the Freedom of Information Act, an accounting

of

my metered water and sewer service charges for the past three (3) calendar years and for 2014

to-date.

As you may recall, in the fall and winter of

2010 - 2011 I expended more than 250,000.00

to construct a brand new state

of

the art pipeline and tie-in system to connect our sewage service

area adjacent to Arkansas Highway 5 (Stagecoach Road) near its intersection with Shrove Road,

a lateral connector to the I-30 freeway access road.

EXHIBIT

(1)



10/12

t

was necessary for a full-time pipeline crew to excavate tons

of

rocky earth then lay the

pipeline in strict compliance with ADEQ and Highway Department regulations. Plans for the

project had to

be

approved by Mr. Ledbetter as comporting with connection and flowage

requirements for the then-existing Bryant sewer system. This was done, and the

new

system was

completed

by

us and accepted

by

him shortly thereafter,

on or

about March 1 2011. Your records

will reflect the exact date and the results

of

the many inspections that were conducted as the

work progressed as well as the final inspection before acceptance.

During this project we were

of

necessity

in

regular contact with Mr. Ledbetter who

frequently acknowledged that the new pipeline would be a boon to the city 's sewage system

since any number

of

homes both old and new would be able to connect to it for disposal of their

own waste. While

he

made no specific promise

of

compensation, he did indicate that some

allowance would be made by the city in our future water and sewage billings

in

view

of

the large

expenditure involved in building a system that would be of long term use to the city in servicing

other residents. I did not entirely rely

on

such for the building

of

the pipeline, since

it

was

necessary for us to comply with ADEQ standards, but

it

was a factor in determining the quality

of

the materials and workmanship. Nothing was spared in other words to make sure it was

completed in exemplary fashion.

Over the ensuing months, however, it has become apparent that not only have I

not

received any billing consideration for the project,

but

that my water and sewage charges have

rapidly increased, proportionately it seems to a greater extent by far than other homeowners. The

billings have also been unpredictable and erratic. Enclosed, for example, is a print-out

of

charges

for the years 2010 through 2013. One can quickly see that our sewer charges total for 2013 are

almost $20,000.00 greater than those for 2011 ($49, 832.63 compared to $30, 069.65). One

would have expected a comparable rise in water billings, but they fell by half, from some

$32, 000 in 2011 to approximately $16,000

in

2013. The reason

we

were informally told by

Water Department employees was due to a series of faulty meters which did not properly register

our usage. This would

be

corrected we were told for the current year, but

we

were not told

exactly

how

this could

be

done. When I inquired later on this issue, I was told that

it

was simply

not possible to get

an

accurate reading from the water meters and that some estimating would

have to be done. In

just

over a year, the city replaced its water meter on our property three (3)

separate times.

n view

of

the the foregoing and the considerable hardship continued rising water and seage

charges are causing me, I respectfully ask for a full accounting

of my

water and sewage service

on the above accounts. As a part

of

this accounting I wish to know the precise service

and

maintenance history

of

each of the three replaced meters, including exactly why they were

displaced, who examined them and what broken or defective parts were found and the effect of

those defects

on

our usage numbers for the times in question.

I also need to know when we were billed based not on meter readings but on usage

estimates and how those estimates were arrived at.

I also want to know how many other homes and businesses are

now

tied into the

new

pipeline I paid for and what their annual usage charges are so I can compare them to my own.



11/12

I also want to know

if

you plan to give me some allowance for having built and paid for the

new sewage pipeline and tie in.

t

is very respectfully requested that I be provided with this information

in

time to appear

before the Water and Sewage Advisory Committee at its May 2014 meeting the first Tuesday of

that month.

Cc: Hon. Jill Dabbs

Mayor City ofBryant


210 S.W. 3d Street

Bryant R 72022

City Attorney


210 S.W. 3d Street

Bryant R 72022

Sincerely yours

Original

s s s s by

Mary

Bivens

Mary Bivens



12/12

JS 44

(Rev. 12/12)

IVIL OVER SHEET

The 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

provided by local rules

of

court This

form,

approved by the Judicial Conference

of the

United States in September 1974, is reqmred for the use of the Clerk

of

Court

for

the

purpose

of

initiating the civiLdocket sheet SEE INSTRUCTIONS

ON

NEXT PAGE

OF

THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Mary Bivens, d/b/a B M

Mobil

Home Park

City of BByant, Arkansas

(b) County of Residence ofFirst Listed Plaintiff S ~ a ~ l = i = n = e ~ - - - - -

EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

_ _ a ~ l _ i _

n _ e ~ - - - - -

I N U S PLAINTIFF CASES ONLY)

(

C)

Attorneys Firm Name, Address, and Telephone Number)

Sandy S. McMath

711 West 3d

StreetSOl-396-5414

Lit t le

Rock

AR

72201

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

Attorneys

(If

Known)

II. BASIS OF JURISDICTION Place an ''.X in One Box Only)

m

cmZENSHIP OF PRINCIPAL ARTIES Place an X in One Box for Pla

1 U.S. Government

*1

Federal Question

Plaintiff

(US

Government Not a Party)

02

U.S. Government

04 Diversity

Defendant

Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT Place an X in One Box Only)

I

.

0

110

Insurance

PERSONAL INJURY PERSONAL INJURY

0

120

Marine 0 310 Airplane 0 365 Personal Injwy -

0

130

Miller Act 0 315 Airplane Product Product Liability

0

140

Negotiable Instrument

Liability

0 367 Health Care/

0 150 Recovery

of

Overpayment 0 320 Assault, Libel Pharmaceutical

Enforcement

of

Judgment Slander Personal Injwy

0 151 Medicare Act 0 330 Federal Employers' Product Liability

0

152

Recovery of Defaulted Liability 0 368 Asbestos Personal

Student Loans 0 340 Marine

Injury Product

(Excludes Veterans) 0 345 Marine Product Liability

0

153

Recovery of Overpayment Liability

PERSONAL PROPERTY

of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud

0

160

Stockholders' Suits

0 3 55 Motor Vehicle 0

371

Truth in Lending

0

190

Other Contract Product Liability 0 380 Other Personal

0 195 Contract Product Liability

t

360 Other Personal

Property Damage

0

196

Franchise

Injwy 0 385 Property Damage

0 362 Personal Injury - Product Liability

Medical Malpractice

p

J

- ~ - ~

,jc,;,

0 210 Land Condemnation

2{_440 Other Civil Rights

Habeas Corpus:

0 220 Foreclosure 0 441 Voting

0 463 Alien Detainee

0 230 Rent Lease Ejectment 0 442 Employment 0 510 Motions to Vacate

0 240 Torts

to

Land

Jt443 Housing/

Sentence

0 245 Tort Product Liability Accommodations 0

530

General

0 290 All Other Real Property

0 445 Amer. w/Disabilities - 0 535 Death Penalty

Employment

Other:

0 446 Amer. w/Disabilities - 0 540 Mandamus Other

Other 0 550 Civil Rights

0 448 Education 0 555 Prison Condition

0 560 Civil Detainee -

Conditions

of

Confinement

V. ORIGIN Place an X in One Box Only)

For Diversity Cases Only)

PT DEF

and

One Box for Defendant)

PTF DEF

Citizen of This State

ix

1

Incorporated or Principal Place 0 4 0 4

of Business In This State

Citizen

of

Another State

0 2 0 2 Incorporated

and

Principal Place

0 5 0 5

of Business In Another State

0 3 0 3 Foreign Nation

0 6 0 6

,,.

.

r

.

0 625 Drug Related Seizure

o

422 Appeal 28

use 158

0

375 False Claims Act

ofproperty 21 USC

881

0 423 Withdrawal

0

400 State Reapportionment

0 690 Other 28 USC 157

0

410 Antitrust

0

430 Banks and Banking

''

:.U:

0

450 Commerce

0 820 Copyrights

0

460 Deportation

0 830 Patent 0

470 Racketeer Influenced an

0 840 Trademark

Corrupt Organizations

0 480 Consumer Credit

.

0

490 Cable/Sat TV

0 7 O Fair Labor Standards 0

861

HIA (1395ff)

0 850 Securities/Commodit ies/

Act 0 862 Black Lung (923) Exchange

0 720 Labor/Management 0 863 DIWC/DIWW (405(g) )

0

890 Other Statuto1y Actions

Relations 0 864 SSID Title XVI

0

891

Agricultural Acts

0 740 Railway Labor Act 0 865 RSI (405(g))

0 893 Environmental Matters

0 751 Family and Medical 0 89 5 Freedom oflnfor mation

Leave Act Act

0 790 Other Labor Litigation 0 896 Arbitration

0

791

Employee Retirement

' ~ W l . E o C o F - , ~

0 899 Administrative Procedu

Income Security Act 0 870 Taxes (U.S. Plaintiff

Act/Review or Appeal o

or Defendant)

Agency Decision

0

871

IRS-Third Party

0

950 Constitutionality

of

26 USC 7609

State Statutes

0 462 Naturalization Application

0 465 Other Immigration

Actions

1

Original 0 2 Removed from

Proceeding State Court

0 3 Remanded

from

Appellate Court

0 4 Reinstated or

Reopened

0 5 Transferred from

Another District

(specify)

0 6 Multidistrict

Litigation

e . f f ~ s : i ~ i ( f ~ 1 1 ~ J w h i c h you are filing Do not cite jurisdictional statutes unless diversity):

VI. CAUSE

OF

ACTION

..... .1--z1:-d-e-sc-r-ip-tio_n_o_f-ca-u-se-:--------------------------------

vio la t tn

tenantS ci

vi

VII. REQUESTED IN

COMPLAINT:

VIII. RELATED CASE(S)

IFANY

DATE

RECEIPT

AMOUNT

CHECK

IF THIS IS

A CLASS ACTION

ER RULE 23, F.RCv.P.

APPL YING IFP

CHECK

YES

only if demanded in complaint:

JURY DEMAND: 0 Yes 0 No r

DOCKET NUMBER

JUDGE

MAG.JUDGE

Case 4:15-cv-00515-DPM Document 1-1 Filed 08/17/15 Page 1 of 1

Documents

Bivens v. Bryant Lawsuit