Law Suit against Marion County, Oregon

Part IV of VII

 

 

 

 

Melissa D. Wischerath

OSB # 130194

Law Office of M.D. Wischerath

P.O. Box 12263

Eugene, OR 97440

(541) 600-4319 | (646) 765-0035 |

melissa@mdwlaw.net

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

 

EUGENE DIVISION BRUCE WAYNE HENION

Plaintiff,

v.

Case No.: 6:16-cv-01918-AA

THIRD AMEDNDED COMPLAINT

Americans with Disabilities Act

42 U.S.C. § 12101 et seq.

Section 504 of the Rehabilitation Act of 1973 29 U.S.C. § 794 et seq.

ORS §§ 659A.142 (5)(a), 659A.145 (g)

MARION COUNTY and LAURA PEKAREK, in her official capacity as Code Enforcement Officer of the Marion County Sheriff’s Office.

Defendants.

JURY TRIAL REQUESTED

 

INTRODUCTION

 

This action is brought against Defendant Marion County and its code enforcement officer, Laura Pekarek, in her official capacity as Code Enforcement Officer of Marion County Sheriff’s Office, to remedy a pattern and practice of discrimination against individuals with Conditional Use Hardship Permits, particularly those with 1) long term medical care needs that require extended stays away from their residences, and 2) significant physical disabilities that require a team of round the clock, dedicated in-home care attendants to reside with individuals with Conditional Use Hardship Permits. Marion County discriminated against a person by reason of his disability, by failing to take simple, no-cost, reasonable measures to accommodate persons who rely on Conditional Use Hardship Permits to access housing and did so with deliberate indifference to the individual’s rights under federal and state law.

 

The State’s Exclusive Farm Use Zones (EFU) codified at ORS § 215.283 (2) (l), provides that “[w]ithin three months of the end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demolished or, in the case of an existing building, the building shall be removed, demolished or returned to an allowed nonresidential use.” “Hardship” means a medical hardship or hardship for the care of an aged or infirm person or persons. OAR 660-033-0130. Subsection (u) further provides that local governments may allow “room and board arrangements for a maximum of five unrelated persons in existing residences” in EFU zones. Marion County Code provides for permitting of five unrelated persons in existing residences at MCC 17.136.050(D)(4).

 

While it is clear from the statute and implementing regulations that a Conditional Use Hardship Permit terminates within three months of the end of the medical hardship, the statute and implementing regulations do not state that a medical hardship terminates because the permit holder is absent the property due to extended hospitalization, even one longer than three (3) months. Marion County Code also provides for instances where five unrelated persons may reside in a property’s established residences. Nevertheless, it has been Marion County’s unlawful pattern, policy and/or practice to require that properties that are subject to Conditional Use Hardship Permits evict in-home care attendants during extended hospitalization and/or medical stays, and to threaten termination of Conditional Use Hardship Permits based on the permit holder’s absence from the property during an extended hospitalization and/or medical stay, even when the permit-holder intends to return to reside on the property.

 

JURISDICTION AND VENUE

 

1. This is an action for declaratory and injunctive relief, brought pursuant to the Americans with Disabilities Act (‘the ADA”), 42 USC § 12101 to 12213, specifically Title II of the ADA and Section 504 of The Rehabilitation Act of 1973, 29 USC § 794 et. seq.

 

2. This court has jurisdiction over this action under 28 USC §1331 and 1343 for claims arising under the ADA and Section 504 of the Rehabilitation Act of 1973.

 

3. This court has jurisdiction to issue a declaratory judgment pursuant to 28 USC §§2201 and 2202.

 

Defendants have a place of business in this District and transact business in this District, and a substantial portion of the acts giving rise to this action occurred in this District. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).

 

5. As a substantial portion of the acts or omissions giving rise to this action occurred in Marion County, divisional venue is proper in this Division pursuant to LR 3-2.

 

PARTIES

 

Defendant Marion County

 

6. Marion County is a local government body whose responsibility is to oversee the Marion County Code Enforcement. Marion County is a public entity under Title II of the ADA as defined in 28 USC § 12131(I) and 28 CFR §35.104. Marion County is a recipient of federal financial assistance under 29 USC §794. Marion County uses said federal financial assistance in its program activities, including national priority safety programs.

 

Defendant Laura Pekarek

 

7. Laura Pekarek is employed by Marion County as the Code Enforcement Officer for Marion County Sheriff’s Office. Ms. Pekarek is sued in her official capacity, is responsible for administering code enforcement in Marion County, and for the violations alleged herein.

Plaintiff Bruce Wayne Henion

 

8. Plaintiff Bruce Wayne Henion is a 58-year-old military veteran. On February 5, 1985, Plaintiff was seriously injured, leaving him permanently disabled with tetraplegia—partial or total loss of use of all four limbs and torso—also known as quadriplegia C5 Status. Due to the extent of his disability and his loss/impairment in controlling his bowel and bladder, Plaintiff relies extensively and exclusively on a team of 24/7 home care attendants to undertake even the most basic tasks. Plaintiff is unable to get out of bed in the morning without undergoing an approximately four (4) hour morning medical bowel program that is coordinated by his home care attendants. He relies on his home care attendants for everything and anything, from getting in and out of bed, accessing food, water, and bathing, and navigating every step of life.

 

9. Due to the severity of Plaintiff’s medical needs, he requires round-the-clock care from a team of several qualified in-home care providers.

 

10. Plaintiff requires at least two (2), and preferable three (3) to four (4) in-home care attendants for three (3) daily 8-hour shifts, and a fourth back-up in the event that one care attendant is sick, is unavailable, or quits.

 

11. Plaintiff requires skilled in home care attendants who are trained to meet his medical needs, and are willing to work and live with him to meet his financial needs.

 

12. Plaintiff is unable to stand up unless he is at a standing table with a Hoyer lift, which requires significant assistance from his in home care attendants. He has not walked by himself for thirty-five (35) years.

 

13. Plaintiff resides in a manufactured home custom retrofitted so as to support his disability and medical needs on property owned by a trust established by his paternal grandparents, Lester and Alice Henion.

 

14. Plaintiff’s sister, Judy Henion-Nachand, became trustee of the property in June 2016. She does not live on the property. Prior to that time, Plaintiff’s uncle, Lloyd Henion, was trustee. Lloyd Henion does not live on the property.

 

15. David Henion (“David”) is Plaintiff’s 79-years-old father. He also lives on the property and manages property’s the day-to-day activities. However, given his age and own personal health needs, he is unable to provide the support and assistance that his son, the Plaintiff, requires to live in his home.

 

16. David’s wife and Plaintiff’s stepmother, Betty Henion, is 79-years-old. Though she lives on the Property, given her age and her own personal health needs, she is unable to provide the support and assistance that the Plaintiff requires to live in his home.

 

FACTUAL ALLEGATIONS

 

17. The Lester & Alice Henion Trust is the fee simple owner of the 18-acre agricultural property (“The Property”) located at 3339 Jefferson-Scio Drive SE, Jefferson, OR 97352 on which Plaintiff’s manufactured home is located.

 

18. David Henion, and his wife, Betty Henion, reside in the permanent house on the property.

 

19. The Property’s code is A93A, “agriculture, general diversified, class 3, with 1 house.”

 

20. The Property’s class is 551, “specially assessed farm land, improved, and zoned Exclusive Farm Use (EFU).

 

21. In 1990, Plaintiff brought his manufactured home onto the Property by obtaining a Conditional Use Hardship Permit, which has been renewed on an annual basis, because of his qualifying permanent medical hardship.

 

22. Currently, Plaintiff has a valid Conditional Use Hardship Permit for his manufactured home located on the Property.

 

23. On or around November 5, 2015, Ms. Pekarek arrived on the Property for a code enforcement inspection related to alleged solid waste violations. At the time of the inspection, Plaintiff was in bed, ill, cognitively impaired, and naked, however, attempted to engage in a discussion with Ms. Pekarek to resolve the alleged violations. At the time of the inspection, no written citations were issued; however, Ms. Pekarek gave verbal instructions to Plaintiff to address various code violations on the Property. Shortly thereafter, Plaintiff hired additional people to address the issues as instructed to the best of his ability.

 

24. At the time of the November 5, 2015 inspection, David and Betty Henion were on an extended five (5) month vacation in Texas.

 

25. In November of 2015, Plaintiff resided in his manufactured home located on the Property with three (3) in-home care attendants.

 

26. The in-home care attendants shared the 24/7 shifts required to care for Plaintiff. One in-home care attendant served as the main supervisor and Plaintiff’s primary caregiver.

 

27. In December of 2015, after several local emergency room visits, Plaintiff’s primary home attendant took him to the emergency room at the Veteran’s Hospital in La Jolla, CA. Plaintiff was to be seen for his annual appointment at the Spinal Cord Injury Unity in January, however, his grave condition required an emergency visit.

 

28. When Plaintiff departed for the emergency room, he left two (2) in-home attendants at his house to await his return.

 

29. In December of 2015, Plaintiff spent two (2) weeks in the emergency room at the veteran’s hospital.

 

30. During the two-week emergency medical stay, Plaintiff received a Foley catheter as a temporary medical service, and was scheduled for an operation at the facility in April, 2016, to address the underlying medical problems that precipitated the emergency visit.

 

31. On March 2, 2016 Ms. Pekarek sent a letter addressed to David Henion that set forth the alleged violations she saw on February 11, 2016, when she inspected the Property. Ms. Pekarek did not send a copy of the letter or otherwise notify the property’s trustee, Loyd Henion, about the violations.

 

32. In April, 2016, Plaintiff returned to the Veteran’s Hospital in La Jolla, CA for his scheduled operation. He spent nearly a month in the SCI unit, and was to be released to return to his home in Oregon in May.

 

33. In April 2016, Marion County Code Enforcement Officer Laura Pekarek verbally informed David Henion that Plaintiff’s in-home care attendants had to leave the premises while Plaintiff was absent or else the county would revoke the Conditional Use Hardship Permit. Ms. Pekarek did not contact the property’s trustee, Loyd Henion, about the removal of the in-home care attendants. David Henion subsequently informed the in-home care attendants that they had to move out of Plaintiff’s home and off the property.

 

34. In May 2016, Plaintiff believed that his father was going to take him home to Oregon to recover from his surgery with the assistance of his in-home care attendants. However, when David Henion arrived at the SCI unit, Plaintiff was informed that his father had evicted Plaintiff’s in-home care attendants, because of Ms. Pekarek’s statements, in her capacity on behalf of Marion County, “that if the caregivers did not leave, [Plaintiff] would lose the Conditional Use Hardship Clause” and Plaintiff would be without a home when he returned.

 

35. On July 15, 2016, Plaintiff sent a tort notice to Marion County Legal Counsel, and the Marion County Board of Commissioners notifying Defendants of his intent to file a lawsuit against Defendants related to violations of his civil liberties under Federal and State disability laws. Neither Ms. Pekarek nor any representative from Marion County sought input from the Plaintiff regarding the ongoing need for accommodations set forth in the tort notice.

 

36. Plaintiff was scheduled for and underwent a third operation in August, 2016, at the Veteran’s Hospital in La Jolla, CA.

 

37. Plaintiff has no control over the Veteran’s Association scheduling of operations, nor the length of time his recovery will take in between operations.

            

38. On December 28, 2016, Ms. Pekarek contacted Plaintiff’s sister and new property trustee, Judy Henion-Nachand, regarding the alleged code violations on the property. Judy reiterated to Ms. Pekarek Plaintiff’s need for trained in-home caregivers to be in place before her brother could safely return home. Ms. Pekarek stated that the Plaintiff’s caregivers could not live at the property if the Plaintiff was not also present, and that if Plaintiff did not return, his house would have to be removed from the property. Ms. Pekarek did not indicate that she would investigate whether any accommodations were available, reasonable, and/or necessary.

 

39. Since December 2016, Plaintiff’s father and sister have, on multiple occasions, repeated to Ms. Pekarek Plaintiff’s need for in-home care attendants to be trained and in place upon Plaintiff’s return to his home.

 

40. To date, Plaintiff has been unable to return to his manufactured home in Oregon since May 2016, due to the ongoing actions, letters, threats and intimidation by Ms. Pekarek, in her capacity on behalf of Marion County. Plaintiff currently resides in Mexico with his primary caregiver.

 

41. Plaintiff is unable to reside in his manufactured home without having qualified in-home care attendants in place at all times, even during extended medical stays, and the ability to renew his Conditional Use Hardship Permit.

 

42. Ms. Pekarek, in her capacity on behalf of Marion County, has verbally reiterated her intention to terminate Plaintiff’s Conditional Use Hardship Permit and/or require the eviction future in-home care attendants at any time Plaintiff has an extended absence from the property, even if for medical reasons.

 

43. Plaintiff has requested reasonable accommodations from Ms. Pekarek and Marion County, specifically allowing Plaintiff’s in-home care attendants to remain in Plaintiff’s home while Plaintiff is hospitalized in a way that would allow Plaintiff to safely return to the Property. Defendants have responded with ongoing actions, letters, threats, and intimidation that compromise his use and occupancy of the Property.

 

44. Ms. Pekarek and Marion County have denied Plaintiff’s requests for reasonable accommodations. Defendants have failed to conduct a fact-specific analysis with sufficient information from the Plaintiff and qualified experts to determine whether accommodations were necessary and reasonable.

 

45. Ms. Pekarek and Marion County have addressed the violations, threats, and retaliatory actions to Plaintiff’s parents and sister, due to the fact that Plaintiff does not own the Property, and currently resides in Mexico.

 

46. Plaintiff will be directly harmed in the event that his Conditional Use Hardship Permit is terminated, and/or daily fines are assessed against the Property.

 

47. Plaintiff has suffered emotional and financial harms, because of the expense of retraining in home attendants, relocation costs to Mexico, and his inability to live near family.

 

FIRST CLAIMFOR RELIEF

THE AMERICANS WITH DISABILITIES ACT

 

48. Plaintiff incorporates by reference the allegations of paragraphs 1 through 47 above.

 

49. Title II of the ADA prohibits a public entity from excluding a person with a disability from participating in, or denying the benefits of, the goods, services, programs and activities of the entity or otherwise discriminating against a person on the basis of disability. 42 USC § 12132.

 

50. At all times relevant to this action Marion County was and is a public entity within the meaning of Title II of the ADA and provides a code enforcement and permit program, service or activity to the general public.

 

51. At all times relevant to this action, Plaintiff was a qualified individual with a disability within the meaning of Title II of the ADA and meet the essential eligibility requirements for the receipt of the services, programs or activities of provided by Marion County.

 

52. From November 2015 to date, Defendants have failed to provide reasonable accommodations to the Plaintiff that would allow the Plaintiff’s in-home care attendants to remain employed and in the Plaintiff’s home while he is hospitalized; have disproportionately burdened disabled individuals; and have implemented policies that resulted in the disparate treatment and disparate impact against individuals with disabilities whose serious medical needs may require them to be away from home for extended periods of time, and/or require in-home care attendants.

 

53. As a direct and proximate result of Defendants’ violations of Title II of the ADA, Plaintiff was injured as set forth herein and will continue to suffer injury until Defendants are required to, and have, come into compliance with the requirements of the ADA.

 

54. At times relevant to this complaint, Defendants had notice that an accommodation was required, particularly after the July 15, 2016, tort claim notice, and deliberately failed to act upon that knowledge.

 

SECOND CLAIM FOR RELIEF

 

SECTION 504 OF THE REHABILITATION ACT OF 1973

 

55. Plaintiff incorporates by reference the allegations of paragraphs 1 through 54 above.

 

56. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the regulations promulgated thereunder, prohibit discrimination against people with disabilities by recipients of federal funding. Section 504 provides, in pertinent part, that:

 

No otherwise qualified handicapped individual…shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance […].

 

57. Defendants have received substantial federal financial assistance at all relevant times.

 

58. Plaintiff is an otherwise qualified handicapped individual within the meaning of Section 504 of the Rehabilitation Act.

 

59. Defendants have discriminated against Plaintiff in programs and activities receiving federal financial assistance solely because of his disability, and all others similarly situated, in violation of 29 U.S.C. §794 and the regulations promulgated thereunder.

 

60. As a proximate result of Defendants’ violations of Section 504, the Plaintiffs have been injured as set forth herein and will continue to suffer injury until Marion County is brought into compliance with 29 U.S.C. § 794 requirements.

 

61. Because Defendants’ discriminatory conduct presents a real and immediate threat to Plaintiff, his safety and his ability to equally access reasonable accommodations, and to equally access public services declaratory and injunctive relief are appropriate remedies.

 

62. At times relevant to this complaint, Defendants had notice that a reasonable accommodation was available, and deliberately failed to act upon that knowledge.

 

THIRD CLAIM FOR RELIEF

 

ORS §§ 659A.142 (5)(a), 659A 145 (g)

 

63. Plaintiff incorporates by reference the allegations of paragraphs 1 through 61 above.

 

64. Defendants refused to make reasonable accommodations in rules, policies, practices or services when the accommodations were necessary to afford the individual with a disability equal opportunity to use and enjoy a dwelling in violation of ORS §659A 145 (g).

 

65. Defendants denied an individual the benefits of the services, programs or activities of local government and/or made a distinction, discrimination or restriction because the individual has a disability in violation of ORS § 659A.142 (5)(a).

 

PRAYER FOR RELIEF

 

WHEREFORE, Plaintiffs pray for relief as follows:

 

66. A declaration that Defendants’ policy, pattern and/or practice of failing to investigate and/or provide reasonable accommodations to individuals with Conditional Use Hardship Permits that would allow in-home care attendants to remain employed and on property during the permit-holder’s extended hospitalizations and/or medical stays does not comply with the requirements of Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 and Oregon disability laws;

 

67. A declaration that Defendants’ policy, pattern and/or practice of threatening to terminate a Conditional Use Hardship Permits based on the individual’s absence from the residence during an extended hospitalization and/or medical stay discriminates against Plaintiff and fails to comply with the requirements of Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 and Oregon disability laws;

 

68. An order and judgment enjoining Defendants from violating Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 and Oregon disability laws, including anti-retaliation provisions that prohibit retaliation or discrimination against anyone, disabled or not, on the basis of that person's efforts to oppose unlawful discriminatory practices;

 

69. An order and judgment requiring Defendants to change their policy, pattern and/or practice regarding enforcement and termination of Conditional Use Hardship Permits.

 

70. Enter judgment in favor of Plaintiff in an amount of money damages to be proven at trial;

 

71. Award Plaintiff’s reasonable attorneys’ fees, litigation expenses and costs;

 

72. All such other and further relief as the Court deems just and proper.

 

Respectfully submitted this 8th day of January, 2018.

 

/s/ Melissa D. Wischerath

Melissa D. Wischerath

OSB # 130194

P.O. Box 12263

Eugene, OR 97440

(541) 600-4319 | (646) 765-0035 |

melissa@mdwlaw.net

 

In the case of BRUCE WAYNE HENION, Plaintiff, v. MARION COUNTY and LAURA PEKAREK, in her official capacity as Code Enforcement Officer of Marion County Sheriff’s Office, Defendants; Case No. 6:16-cv-01918-AA, evidences submitted to the Judge we believe meet all three provisions, while other Oregon Counties that have language in there Conditional Use Medical Hardship for dwelling Codes and or Applications for permit or both, that is similar to Marion County, are also in contrast to ORS’s, Title II of the ADA and § 504 of the Rehabilitation Act:

 

The author of this publication’s attorney, Melissa D. Wischerath, OSB # 130194, submitted PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Ch. 37), to the U. S. District Court, Eugene, Oregon, June 3, 2018, and the following discusses the author’s on going Case aforementioned briefly,  in respect to the three essential provisions necessary to prove a public entity discriminated against anyone, which the aforementioned law suit contest, and it is not the intention of this publication to declare that anyone else was inflicted with discrimination at the level and degree the author of this publication professes in his law suit, while Case history will be available in Books presented by August 2018 on the authors web site associated with http://uscarrierhistory.com.

 

Note the following corrections to my attorneys Summary of Motion

 

Case 6:16-cv-01918-AA Document 44 Filed 06/06/18 Page 7 of 26

 

After the accident that left him paralyzed, Plaintiff’s grandmother, Alice Henion, and her husband, Charles Henion, Plaintiff’s step-grandfather, sought to bring Plaintiff to live in a manufactured home on the Property so that they and other family could assist in his care and well-being. (Ex.2 at 1). Alice and Charles applied for, and, on January 14, 1991,

 

6 | Page- PLAINTIFF'S RESPONSE TO DEFENDANTS’ SECOND MOET

 

I am blood related to Charles and Alice Henion.

 

Case 6:16-cv-01918-AA Document 44 Filed 06/06/18 Page 12 of 26

 

(Ex. 10 at 158). Mr. Henion returned to his home after the emergency room visit and scheduled annual appointment with the Spinal Care Injury Unit. (Id. at 155).

 

I went to Baja, Mexico ill with a indwelling catheter to await surgery as I could not make several trips from Oregon to California during 2016.

 

10 | Page- PLAINTIFF'S RESPONSE TO DEFENDANTS’ SECOND MOET

 

DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

KENNETH S. MONTOYA, OSB #064467

 

Sr. Assistant Legal Counsel

kmontoya@co.marion.or.us

555 Court Street N.E.

P.O. Box 14500

Salem, OR 97309

Telephone: (503) 588-5220

Facsimile No.: (503) 373-4367

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRUCE WAYNE HENION,

Plaintiff,

 

v.

 

MARION COUNTY and LAURA PEKAREK, in her official capacity as Code Enforcement Officer of Marion County Sheriff’s Office,

Defendants.

Case No. 6:16-cv-01918-AA

 

DEFENDANTS’ ANSWER TO PLAINTIFF’S THRID AMENDED COMPLAINT

JURY TRIAL REQUESTED

 

Defendants Marion County and Laura Pekarek (“defendants”), in answer to plaintiff’s Third Amended Complaint, admit, deny and allege as follows:

 

1. In response to plaintiff’s “Introduction,” deny all factual assertions therein.

 

2. Paragraphs 1 and 2 set forth that plaintiff’s action seeks declaratory and injunctive relieve and this Court’s jurisdiction over his claims to which no response is due from defendants.

 

Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 1 of 6

 

2 | P a g e DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

 

3. In response to paragraph 3, admit that this Court has authority to issue a declaratory judgment however, deny that any such declaratory judgment is appropriate in this matter.

 

4. Defendants admit paragraphs 4, 5, 6, 17, 19 – 22, and 50.

 

5. In response to paragraph 7, admit that Laura Pekarek is employed by Marion County as a Code Enforcement Officer but deny any “violations” alleged by plaintiff in his action.

 

6. In response to paragraphs 8 – 16, 18, 24 – 30, 32, 36 – 37, and 41, defendants are without sufficient knowledge or information to admit or deny these allegations and thus, deny these allegations at this time.

 

7. In response to paragraph 23, admit that Ms. Pekarek conducted an inspection of the subject property on or about November 5, 2015, and that Ms. Pekarek advised plaintiff of several code violations. Further admit that Ms. Pekarek did not issue any citations. Except as expressly admitted, deny the remaining allegations in paragraph 23 either because they are untrue, untrue as phrased or because defendants are without sufficient knowledge or information to admit or deny these allegations.

 

8. In response to paragraph 31, admit that on March 2, 2016, Ms. Pekarek sent a letter to David Henion setting forth the code violations she observed when she inspected the subject property on November 5, 2015. Deny that Ms. Pekarek inspected the subject property on Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 2 of 6

 

3 | P a g e DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

 

February 11, 2016. Except as expressly admitted, deny the remaining allegations in paragraph 31.

 

9. In response to paragraph 33, deny that that Ms. Pekarek ever told David Henion, “that Plaintiff’s in-home care attendants had to leave the premises while Plaintiff was absent or else the county would revoke the Conditional Use Hardship Permit” or any words to that effect. Admit that Ms. Pekarek did not contact the property’s trustee “about the removal of the in-home attendants.” Defendants are without sufficient knowledge or information to admit or deny the remaining allegations in paragraph 33 and thus, deny these allegations at this time.

 

10. In response to paragraph 34, deny that Ms. Pekarek ever told David Henion, “that if the caregivers did not leave [Plaintiff] would lose the Conditional Use Hardship Clause” or any words to that effect. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations in paragraph 34 and thus, denies these allegations at this time.

 

11. Deny paragraphs 35, 38 – 40, 42 – 47, 52 – 54, 57, 59 – 62, and 64 – 72.

 

12. In response to paragraph 48, defendant realleges and admits and denies as set forth above in response to paragraphs 1 through 47.

 

13.In response to paragraphs 49 and 56, plaintiff sets forth certain legal requirements of Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 to which no response is due.

 

Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 3 of 6

 

4 | P a g e DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

 

14.In response to paragraphs 51 and 58, plaintiff improperly pleads conclusions of law to which no response is due.

 

15. In response to paragraph 55, defendant realleges and admits and denies as set forth above in response to paragraphs 1 through 54.

 

16. In response to paragraph 63, defendant realleges and admits and denies as set forth above in response to paragraphs 1 through 62.

 

17. Except as specifically admitted, defendants deny each and every allegation in plaintiff’s Third Amended Complaint.

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim)

 

18. Plaintiff has failed to state a claim for which relief may be granted for one or more of his claims asserted.

SECOND AFFIRMATIVE DEFENSE

(Qualified Immunity)

 

19. Defendant Laura Pekarek is immune from liability under the doctrine of qualified immunity in that her conduct did not violate any clearly established law and her actions were objectively reasonable at all times. Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 4 of 6

 

5 | P a g e DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

THIRD AFFIRMATIVE DEFENSE

(Not a Proper Party - State Law Claims)

 

20. Defendant Laura Pekarek is not a proper party for plaintiff’s state law claims pursuant to ORS 30.265(1).

FOURTH AFFIRMATIVE DEFENSE

(State Claims Subject to Tort Claims Act

 

21. Plaintiff’s state law claims are subject to the conditions, limitations and immunities contained in the ORS Tort Claims act, ORS 30.260 et seq.

FIFTH AFFIRMATIVE DEFENSE

(Redundant Party – Federal Law Claims)

 

22. Plaintiff has named Laura Pekarek in her “official capacity” only and, as such, his claims are solely against Marion County and Ms. Pekarek is redundant to this litigation.

WHEREFORE, having fully answered plaintiff’s Third Amended Complaint, defendants pray judgment that plaintiff takes nothing thereby and that plaintiff’s action be dismissed with prejudice and that defendants have judgment in their favor and against the plaintiff for their costs and disbursements incurred herein.

 

DEFENDANTS RESPECTFULLY DEMAND A JURY TRIAL.

DATED this 6th day of March, 2018.

/s/Kenneth S. Montoya

Kenneth S. Montoya, OSB #064467

Sr. Assistant Legal Counsel

Attorney for Defendants Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 5 of 6

 

6 | P a g e DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT

CERTIFICATE OF SERVICE

 

I hereby certify that I served the foregoing DEFENDANTS’ ANSWER TO PLAINTIFF’S THIRD AMENDED COMPLAINT on the following persons:

Melissa D. Wischerath

Law Office of M.D. Wischerath

P.O. Box 12263

Eugene, OR 97440

By the following indicated method or methods:

XX

By electronic means through the Court's Case Management/Electronic Case File system on the date set forth below;

___

By mailing a full, true, and correct copy thereof in a sealed, first-class postage-prepaid envelope, addressed to the attorney's last-known office address listed above and causing it to be deposited in the U.S. mail at Salem, Oregon on the date set forth below;

___

By electronic means to the attorney’s last-known e-mail address listed on the Oregon State Bar Online Membership Directory on the date set forth below;

___

By causing a copy thereof to be hand-delivered to said attorney at each attorney's last-known office address listed above on the date set forth below;

DATED this 6th day of March, 2018.

/s/Kenneth S. Montoya

Sr. Assistant Legal Counsel

Attorney for Defendants

Case 6:16-cv-01918-AA Document 32 Filed 03/06/18 Page 6 of 6

 

KENNETH S. MONTOYA, OSB #064467

Sr. Assistant Legal Counsel

kmontoy@co.marion.or.us

555 Court Street N.E.

P.O. Box 14500

Salem,OR97309

Telephone: (503) 588-5220

Facsimile No.: (503) 373-4367

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRUCE WAYNE HENION,

Plaintiff,

V.

Case No. 6:16-cv-01918-AA

DEFENDANT LAURA

PEKAREK'S RESPONSE TO

PLAINTIFFS' FIRST SET OF

INTERROGATORIES TO

DEFENDANT LAURA PEKAREK

MARION COUNTY CODE ENFORCEMENT,

MARION COUNTY SHERIFF'S OFFICE, and

LAURA PEKAREK, in her official capacity as

Code Enforcement Officer of Marion County

Sheriffs Office, Defendants.

 

"Marion County Code Enforcement" and the "Marion County Sheriffs Office" are not

separate legal entities subject to suit and, as such, no defendants exist to respond to "Plaintiffs First Request for Production to Marion County Code Enforcement" and "Plaintiffs' [sic] First Request for Production to Defendant Marion County Sheriffs Office." Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedures, Defendant Laura Pekarek ("Defendant") hereby responds to Plaintiffs' [sic] First Set of interrogatories to Defendant Laura Pekarek as follows:

 

1 |Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

Each of Defendant's responses, in addition to any specifically stated objections, is subject

to and incorporates the following general responses and objections. The assertion of the same, similar or additional objections or a partial response to any individual request does not waive any of Defendant's general responses and objections.

 

1. The following responses reflect the current state of the Defendant's knowledge,

understanding and belief respecting matters about which inquiry has been made. Defendant expressly reserves the right to supplement or modify these responses with such pertinent information as he may hereafter discover or as may be informed by the opinions of experts retained by the parties to testify in the trial of this matter, and will do so to the extent required by the Federal Rules of Civil Procedure. Defendant expressly reserves the right to rely on, at any time, including trial, subsequently discovered documents and/or materials that have been produced promptly upon discovery.

 

2. Defendant objects to any interrogatory that seeks information constituting or

containing information concerning communications between the defendant and his counsel, which are protected by the attorney-client privilege.

 

3. Defendant objects to any interrogatory that seeks information constituting or

containing information prepared in anticipation of or as a result of litigation or which is

otherwise protected by the work product doctrine or other available privilege or protection.

 

4. Defendant objects to any interrogatory to the extent that it purports to impose

upon him any obligation beyond those imposed by the Federal Rules of Civil Procedure,

including, but not limited to, any interrogatory that exceeds the scope of Federal Rules of Civil Procedure 26(b) and 33.

 

2 |Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

5. Defendant objects to these interrogatories to the extent that they are over-broad,

unduly burdensome, vague, ambiguous, confusing, require speculation to determine their

meaning or use imprecise specifications of the information sought.

 

6. Defendant objects to any interrogatory to the extent that it seeks information

neither relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery of admissible evidence.

 

7. Defendant objects to any interrogatory as unduly and unnecessarily burdensome

to the extent that it seeks information that is matter public record, already in the plaintiffs

possession, or otherwise readily available to the plaintiff, and, therefore, may be accessed and obtained by the plaintiff with less burden than the Defendants can identify and provide requested information.

 

8. None of the objections or responses contained herein is an admission concerning

the existence of any documents or materials, the relevance or admissibility of any documents, materials or information, or the truth or accuracy of any statement or characterization contained in Plaintiffs First Set of Interrogatories. Defendant's written responses are made without waiving, but, on the contrary, expressly reserving: (a) the right to object, on the grounds of competency, privilege, relevancy, materiality or any other proper grounds, to the use of the information provided herein, in whole or in part, in any subsequent proceeding in this action, or any other action; (b) the right to object on any and all grounds, at any time, to other discovery requests involving or relating to the subject matter of these requests; and (c) the right at any time to revise, correct, add or clarify any of the responses provided herein.

 

9. Defendant objects to any interrogatory that seeks information that is already in the

plaintiffs possession.

 

3 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

SPECIFIC OBJECTIONS AND RESPONSES

 

INTERROGATORY NO. 1: Identify and describe the responsibilities of Laura Pekarek

including but not limited to the scheduling, handling, facilitating, and overall role in temporary and/or conditional hardship permitting, zoning and land use requests, violations, proceedings variances, grandfathering, evictions, ADA compliance and reasonable accommodations. RESPONSE: Pursuant to FRCP 33(d) Defendant will provide business records responsive to this interrogatory.

 

INTERROGATORY NO. 2: Identify and describe the number of temporary and/or conditional hardship permits approved and/or terminated by Marion County for the past five years, mcluding the general reasons for the approval, termination, eviction, and/or grandfathering for any and all permits.

 

RESPONSE: I am not charged with approving or terminating temporary and/or

conditional hardship permits and, as such, am unable to respond to this Interrogatory.

 

INTERROGATORY NO. 3: Identify and describe the relationship between MARION

COUNTY, MARION COUNTY CODE ENFORCMENT, MARION COUNTY SHERIFF'S OFFICE, and LAURA PEKAREK relating to temporary and/or conditional hardship permitting, zoning and land use requests, violations, proceedings variances, grandfathering, evictions, ADA compliance and reasonable accommodations.

 

RESPONSE: Marion County is an Oregon municipal body and the Marion County

Sheriffs Office ("MCSO") is a department within Marion County. The Sheriffs Office is

charged with carrying out various law enforcement related services. Marion County Code

Enforcement is part of the Operations Division of the Marion County Sheriffs Office and it

 

4 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

responds to complaints of possible violation of various ordinances including land use and

zoning violations, building code and on-site septic violations, rights-of-way and driveway

violations and nuisance and solid waste violations for the unincorporated areas of Marion County.

INTERROGATORY NO. 4: Identify and describe the employment status of any and all county officials and/or staff, who visited the Property for purposes of land use and zoning violations alleged in this matter.

 

RESPONSE: Object that this Interrogatory calls for Defendant to speculate as to all

individuals from Marion County who may have visited the subject property. Without

waiving this objection, this Defendant is aware of the following individuals who are

employed by Marion County: MCSO Sergeant Jason Hickam, MCSO Deputy Mathieu

LaCrosse, IVICSO Deputy Steve Duncan and Marion County Building Code employee Jeff Nealon.

 

INTERROGATORY NO. 5: Identify and describe county enforcement officer Laura Pekarek's involvement in temporary and/or conditional hardship permitting, zoning and land use requests, violations, proceedings variances, grandfathering, evictions, ADA compliance and reasonable accommodations.

 

RESPONSE: See Response to Interrogatory No. 1 and No. 2.

 

INTERROGATORY NO. 6: Identify and describe the name of any other county enforcement

 

5 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

officer who worked for the county and/or might have taken on any of Laura Pekarek' s

responsibilities at any time for the past 5 years.

 

RESPONSE: Art Stinson.

 

INTERROGATORY NO. 7: Identify and describe the name of any person who supervised Laura Pekarek and/or any Coimty staff involved in code enforcement proceedings for the past 5 years.

 

RESPONSE: Marion County Sheriffs Office Sergeant Jason Hickam and Marion county Sheriffs Office Lieutenant Christopher Baldridge.

 

INTERROGATORY NO. 8: Identify and describe any investigations, grievances, and reports filed and/or made against you in your employment capacity for the past 10 years.

 

RESPONSE: Object that as overbroad and not proportional to any claim or defense in this matter. Without waiving this objection, none related to matters relevant to this action.

 

INTERROGATORY N0.9: Describe with particularity all of Marion County's policies, practices, and/or procedures, relating to temporary and/or conditional hardship permits, including but not limited to:

 

a. Availability and usage of temporary and/or conditional hardship permits.

b. Revocation of temporary and/or conditional hardsMp permits.

c. Evictions associated with and/or related to temporary and/or conditional hardship permits.

 

6 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

d. Availability and usage of accommodations related to temporary and/or conditional hardship permits.

e. "Grandfathering" temporary and/or conditional hardship permits.

f. Citations for zoning and/or land use violations on properties with temporary and/or conditional hardship permits.

 

RESPONSE: Pursuant to FRCP 33(d), to the extent that documents responsive to this

Interrogatory are within the custody and control of this defendant, defendant has

previously provided business records responsive to this Interrogatory in response to

Plaintiffs First Request for Production to Defendant Laura Pekarek.

 

INTERROGATORY NO. 10: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to zoning and land use requests.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

INTERROGATORY NO. 11: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to zoning and land use violations.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

INTERROGATORY NO. 12: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to grandfathering preexisting land uses.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

7 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

INTERROGATORY NO. 13: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to evictions for land use violations.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

INTERROGATORY NO. 14: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to zoning and land use variances.

 

RESPONSE: Same response as to Interrogatory No. 9.

INTERROGATORY NO. 15: Describe with particularity all of Marion County's policies,

practices, and/or procedures, relating to, ADA compliance and reasonable accommodations for zoning and land use requests and violations.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

INTERROGATORY NO. 16: Describe with particularity all of Marion County' s policies, practices, and/or procedures, relating to the setting of a daily fine for evictions for land use violations.

 

RESPONSE: Same response as to Interrogatory No. 9.

 

INTERROGATORY NO. 17: Describe with particularity how an individual with a hardship permit in Marion County could make a request for reasonable accommodations to allow tenants to live in the dwelling unit during an. extended hospitalization that is longer than 90 days.

 

RESPONSE: Same response as to Interrogatory No. 9. Otherwise, I am not charged with

responding to requests for accommodations and, as such, am not familiar with the process

 

8 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

used to make such a request.

 

INTERROGATORY NO. 18: Identify any employees, agents, vendors, contractors, attorneys or consultants that have been involved in temporary and/or conditional hardship permitting, zoning and land use requests, violations, proceedings, variances, grandfathering, evictions, ADA compliance and reasonable accommodations potentially relevant to this action. As to each such individual or entity, please identify their name, title, period of employment (or retention) and the activities they performed in connection with temporary and/or conditional hardship permitting, zoning and land use requests, violations, proceedings, variances, grandfathering, evictions, ADA compliance and reasonable accommodations.

 

RESPONSE: Object that this Interrogatory calls for Defendant to speculate as to all individuals listed above who may have been involved in the matters brought in this action.

 

Further object that this Interrogate may call for information protected by the Attorney/client privilege. Without waiving these objection, this Defendant has identified individuals she is aware of in her Response to Interrogatory No. 4. Additionally, Defendant is aware that Marion County employee Marlene Meyer may have been involved in matters relevant to this action.

 

INTERROGATORY NO. 19: Describe with particularity any and all requests by Bruce Henion, David Henion, Betty Henion, and/or Judy Dale Henion- Nachand for reasonable accommodations, grandfathering, variances, and zoning and land use requests.

 

RESPONSE: Pursuant to FRCP 33(d) Defendant has provided business records responsive to this Interrogatory.

 

9 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

INTERROGATORY NO. 20: Describe with particularity any and all current and past zoning and land use violations against the Property.

 

RESPONSE: Pursuant to FRCP 33(d) Defendant has provided business records responsiveto this Interrogatory.

 

DATED this 22nd day of March, 2018.

 

Laura Pekarek

Code Enforcement Officer

 

10 | Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

CERTIFICATE OF SERVICE

 

I hereby certify that I served the foregoing DEFENDANT LAURA PEKAREK'S

RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK on the following persons:

 

Melissa D, Wischerath

Law Office ofM.D. Wischerath

P.O. Box 12263

Eugene, OR 97440

melissa(a),mdwlaw.net

 

By the following indicated method or methods:

 

By sending a copy thereof to each attorney at each attorney's last-known electronic address on the date set forth below;

 

By mailing a full, true, and correct copy thereof in a sealed, first-class postage prepaid envelope, addressed to the attorney's last-known office address listed above and causing it to be deposited in the U.S. mail at Salem, Oregon on the date set forth below;

 

by electronic means through the Court's Case Management/Electronic Case File system on the date set forth below;

 

By sending a copy thereof via overnight courier in a sealed, prepaid enveloped, addressed to each attorney's last-known address on the date set forth below.

 

DATED this 22nd day of March, 2018.

/s/Kenneth S. Montoya

Sr. Assistant Legal Counsel

Of Attorneys for Defendants

 

11| Page DEFENDANT LAURA PEKAREK'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES TO DEFENDANT LAURA PEKAREK

 

 

Law Suit against Marion County, Oregon

Part IV of VII

 USS CORAL SEA (CV 43)