Law Suit against Marion County, Oregon

Part V of VII

 

 

Melissa D. Wischerath

OSB # 130194

Law Office of M.D. Wischerath

Box 12263

Eugene, OR 97440

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

melissa@mdwlaw.net

Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

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

 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

 

Pursuant to Federal Rule of Civil Procedure 56 and this Court’s Local Rule 7, Plaintiff Bruce Henion, respectfully moves this Court for entry of an Order granting summary judgment in his favor.

 

Due to an illness over the last few days, Plaintiff’s counsel is filing this motion approximately forty (40) minutes past the scheduling order in this action.

 

Specifically, Plaintiff moves for summary judgment on his claims that the Defendant, Marion County, violated his rights under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12131 et seq., and its implementing regulations, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulations (“Section 504”) when it failed to provide a reasonable accommodation to allow the Plaintiff’s personal non-family caregivers to remain in his manufactured home while the Plaintiff was either in the hospital for medical treatment or on vacation and when it implemented and enforced a policy that non-family caregivers could not reside with persons who have a hardship permit and reside within Marion County in certain zones including the EFU.

 

The Defendant further discriminated against the Plaintiff when it threatened to fine the property upon which his mobile home is located and remove his manufactured home—covered under the county’s ordinance governing Conditional Use Hardship Permits, and when the Defendant asserted that Plaintiff’s caregivers, even if related to him, could not reside with him in his home.

In support of his Motion, the Plaintiff submit herein his Memorandum of Law, along with Exhibits, Declarations and Affidavits.

 

For the reasons provided in the supporting Memorandum, Plaintiff contends that there is no genuine disputed issue as to any material fact and that he is entitled to judgment as a matter of law on his claim. Consequently, Plaintiff respectfully prays that this Court grant summary judgment in his favor, declare Defendant violated his rights, enjoin the Defendant from enforcing the County’s illegal policy against him and the property upon which his mobile home is located, and order the Defendant to compensate the Plaintiff for his economic and non-economic injuries.

Respectfully submitted, June 6, 2018

 

/s/ Melissa D. Wischerath

Melissa D. Wischerath, OSB #130194

Attorney for Plaintiff

 

Melissa D. Wischerath

OSB # 130194

Law Office of M.D. Wischerath

Box 12263

Eugene, OR 97440

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

melissa@mdwlaw.net

Attorney for Plaintiff

 

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

PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 

1 | Page- PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY

 

JUDGMENT

 

I. INTRODUCTION

 

Plaintiff, Bruce Henion, who is completely disabled due to paralysis (quadriplegia) and relies on extensive round-the-clock care from trained personnel, brought this action 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, policy 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.

 

Oregon law authorizes counties to adopt EFU zones where, with certain exceptions, land is to be used exclusively for farm use. One of the exceptions is to allow the use of an additional dwelling—a manufactured home, recreational vehicle, or current non-residential building—to be used during the medical hardship of the farm owner or a family member, also known as a “Conditional Use Hardship Permit.” Oregon law does not require that care attendants who support the person who is covered by the Conditional Use Hardship Permit be a relative or live off the property.

 

However, it has been Marion County’s pattern, policy and/or practice to require that properties that are subject to Conditional Use Hardship Permits not allow non-related persons to be in-home care attendants, to evict all 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. When Mr. Henion and the property’s trustee both requested the modification of this pattern, policy and/or practice as an accommodation under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), Marion County refused to provide the accommodation, and forced the eviction of Mr. Henion’s live-in care attendants while he was temporarily hospitalized at the Veterans’ Administration hospital in San Diego, California. The County maintains its position refusing Mr. Henion an accommodation, resulting in Mr. Henion’s inability to return to his home in Marion County, and wherein must remain in Mexico, residing with Mexican caregivers, in the interim.

 

Marion County discriminated against Mr. Henion, 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 his rights under federal and state law.

 

II. STANDARD OF REVIEW

 

The Court may grant summary judgment if the Plaintiffs show there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law based upon the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party must show the absence of a genuine dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). Material facts are those which will affect the outcome of the trial under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”).

 

The court must review the record, and all its inferences, in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, a “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07–CV–1521–JAM–DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). See also Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party’s claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009)(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)).

 

In this case, there is no genuine issue for trial. The Plaintiff, Mr. Henion, is entitled to judgment as a matter of law.

 

III. PARTIES

 

A. Defendant Marion County

 

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.

 

B. Defendant Laura Pekarek

 

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.

 

C. Plaintiff Bruce Wayne Henion

 

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.

 

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

 

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. 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. David Henion (“David”), Plaintiff’s 79-years-old father, and his wife, Betty Henion, live on the property, resides in the main residence, and manage the property’s the day-to-day activities. However, given their age and own personal health needs, they are unable to provide the support and assistance that the Plaintiff requires to live in own his home on the property.

 

IV. FACTUAL BACKGROUND

 

The Plaintiff resides in a manufactured home on the farm established by his grandparents, Lester and Alice Henion. (Ex. 1 at 1, Attached hereto and incorporated herein as Ex. 1 is a Letter from Bruce to Marion County re: hardship and need for caregivers dated 6/28/1998; 3rd Amend. Compl. at 5-6). Currently, the Lester & Alice Henion Trust, formed after the death of the elder Henions, is the fee SE, Jefferson, OR 97352. (Ex. 2 at 1, Attached hereto and incorporated herein as Ex. 2 is the Decision granting Bruce’s Hardship Permit on 1/14/1991). A deed was filed that set forth the promise and covenant required by Marion County for the hardship permit. (Ex. 23, Attached hereto and incorporated herein as Ex. 23 is the deed declaration).

 

David Henion, and his wife, Betty Henion, currently reside in the permanent house on the Property. (Ex. 3 at 1, Attached hereto and incorporated herein as Ex. 3 is an affidavit of Judy Henion-Nachand). The Property’s code is A93A, “agriculture, general diversified, class 3, with 1 house.” The Property’s class is 551, “specially assessed farm land, improved, and zoned Exclusive Farm Use (EFU). (Ex. 4, Attached hereto and incorporated herein as Ex. 4 is a land use application for the property).

 

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, obtained a Conditional Use Hardship Permit from the Defendant. (Id. at 1-8). The Plaintiff, either himself or through the Trust, has renewed the permit on an annual basis, obtaining the required physician’s certificates because of his qualifying permanent medical hardship, up until the present time. (Ex. 5, Attached hereto and incorporated herein as Ex. 5 are Plaintiff’s physician certificates).

The Conditional Use Hardship Permit listed a number of Findings and Conclusions. Number 11 under this section stated,

 

The proposal must also be compatible with Section 120.040 regarding the placement of a temporary medical hardship dwelling. This section requires the hardship condition be limited to the aged, the infirm or to persons otherwise incapable of maintaining a complete and separate residence apart from their family. It is not the intent of this section to permit additional permanent dwellings on the subject property. In general, a Physician's Certificate must be provided in support of this requirement.

 

(Ex. 2 at 4). The next section, Number 12, addressed the issue for the Property:

 

Signed Physician's Certificate was submitted for Bruce Henion indicating he has medical conditions that preclude him from maintaining a complete separate and detached dwelling apart from his family. Based on the available evidence, Bruce Henion's physical circumstances constitute a hardship condition relating to the aged, the infirm, or persons otherwise incapable of maintaining a complete, separate and detached residence, apart from their family. The requirements that a Mobile Home Removal Agreement be filed by the applicant ensures that the mobile home will be removed from the property when the hardship ceases.

(Id.)

 

The Defendant was thus on notice, as early as January 1991, that the Plaintiff was disabled and unable to maintaining a separate residence apart from his caregivers. (Id.)

 

On June 23, 1998, the County sent a letter to Alice and Charles Henion, stating that it was the County’s position that the Plaintiff’s manufactured home was being rented to a non-family member. (Ex. 6, Attached hereto and incorporated herein is a copy of said letter dated 6/23/1998). The County required that anyone other than the Plaintiff who was residing in the manufactured home vacate the premises or the Property would be subject to a $1000 fine. (Id.)

 

On June 28, 1998, the Plaintiff, who was staying in Mexico while receiving treatment, including surgery, in San Diego, California, wrote to the Country regarding the status of his care attendants, who were residing in his manufactured home while the Plaintiff was absent. (Ex. 1). In response to the County’s demands that the care attendants vacate the Property or face a $1000 fine, the Plaintiff requested that the care attendants be able to remain because, upon his return, he would require 24-hour care and could not return “to an empty house” absent having trained attendants awaiting his return. (Id.)

 

On July 1, 1998, Marion County employee Norman Bickell, wrote a “note to file” regarding the status of the Plaintiff’s caregivers while the Plaintiff was absent from the Property. (Ex. 7, Attached hereto and incorporated herein as Ex. 7 is said note dated 7/1/1998).

 

Mr. Bickell wrote that he had phoned the Plaintiff’s step-mother, Betty Henion, who informed him that the Plaintiff was at that time absent from his home for combined medical treatment and vacation. (Id.) Mr. Bickell informed Betty Henion that 1) “that the unit cannot be occupied by anyone other than for which the hardship was approved,” and 2) that the care attendance residing in the unit would have to vacate the unit while the Plaintiff was absent. (Id.)

 

On August 3, 1998, Marion County staff, in an interoffice memo, indicated that the Plaintiff’s mother was told by the Defendant that she also could not reside in the Plaintiff’s home awaiting his return, and required to vacate the Plaintiff’s manufactured home. (Ex. 8, Attached hereto and incorporated herein as Ex. 8 is said interoffice memo dated 8/3/1998).

 

Thus, the Defendant did not provide the Plaintiff with his requested accommodation of allowing care attendants to remain in his manufactured home to care for him upon his impending return. (Id. at 7-8.)

 

On or around November 5, 2015, the County’s code enforcement officer, Ms. Pekarek, arrived on the Property for a code enforcement inspection related to alleged solid waste violations not associated with Mr. Henion’s manufactured home. (Ex. 10 at 17, Attached hereto and incorporated herein as Ex. 10 is a declaration of Bruce Henion with exhibits). At the time of the November 5, 2015 inspection, David and Betty Henion were on an extended five (5) month vacation in Texas and were not available to discuss the waste issues with Ms. Pekarek. (Ex. 11 at 3, Attached hereto and incorporated herein as Ex. 11 is an affidavit of Sharon Clark). Ms. Pekarek did not seek to discuss the violations with the Property’s trustee, but rather, sought out Mr. Henion in his manufactured home. (Ex. 3 at 4).

 

At the time of the inspection, Plaintiff was in bed, ill, cognitively impaired, and naked; (Ex. 12 at 48:11-13, Attached hereto and incorporated herein as Ex. 12 is a copy of the Pekarek transcript,), however, he attempted to engage in a discussion with Ms. Pekarek to resolve the alleged violations associated with the Property. (Id.; Ex. 3. at 4). One or more of Mr. Henion’s care attendants were in the manufactured home at that time of the inspection. (Id.; Ex.12 at 76:25-77:12). The Plaintiff informed Pekarek at that time that he traveled out of state for medical treatment. (Ex.12 at 76:16-22). Ms. Pekarek was at that point on notice that Mr. Henion was severely disabled, confined to bed, and depended upon the assistance of this care attendants. (Ex.12 at 48:21-49:13).

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. (Ex. 13, Attached hereto and hereby incorporated as Ex. 13 is a copy of a letter from Marion County to Mr. Henion dated 3/2/2016.) Shortly thereafter, Plaintiff, with the assistance of the Property trustee, hired additional people to address the issues as instructed to the best of his ability. (Id.)

 

In November of 2015, Plaintiff resided in his manufactured home located on the Property with three (3) in-home care attendants. (Ex. 14 at 22, Attached hereto and incorporated herein as Ex. 14 is a declaration of Jose Heberto Gutierrez Castro). The in-home care attendants share the 24/7 shifts required to care for Plaintiff. (Ex. 15 at 2-3, Attached hereto and incorporated herein as Ex. 15 is a declaration of David Sedore).See also Exs. 11 and 16 at 7, Attached hereto and incorporated herein as Ex. 15 is a declaration of Noe Hernandez Sarmiento). One in-home care attendant served as the main supervisor and Plaintiff’s primary caregiver. (Ex. 15 at 3.)

 

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. (Id. at 2.) Plaintiff was to be seen for his annual appointment at the Spinal Cord Injury Unity in January, 2016; however, his grave condition required an earlier emergency visit. (Id.) (Ex. 10 at 158). When Plaintiff departed for the emergency room, he left two (2) in-home attendants at his house to await his return. (Ex. 15 at 2-3.) In December of 2015, Plaintiff spent two (2) weeks in the emergency room at the veteran’s hospital. (Ex. 10 at 158). 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 multiple emergency room visits.

 

(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).

 

In late January or early February, 2016, David Henion placed a follow-up phone call to Pekarek regarding the alleged violations found during the November inspection. (Ex.12 at 90:15-20.) Pekarek told David Henion that he could not use the manufactured home as a rental while the Plaintiff was absent, and that the hardship permit could be revoked. (Id. at 91:13-20; see also 91:1-24-92:15).

 

On March 2, 2016, Ms. Pekarek sent a letter addressed to Plaintiff’s father, David Henion that set forth the alleged violations she saw on February 11, 2016, when she inspected the Property. (Ex. 13) Ms. Pekarek did not send a copy of the letter or otherwise notify the property’s trustee about the violations. (Ex. 3 at 3-4).

 

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. (Ex. 10 at 158-161).

Ms. 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 this Property’s Conditional Use Hardship Permit. (Ex. 17; Ex. 12 at 91:1-25; See also Ex. 18, attached hereto and hereby incorporated as Ex. 18 is an affidavit of David Henion). Pekarek later phoned David Henion to reiterate that he had to evict the care attendants. (Ex. 3 at 5). Ms. Pekarek did not contact the property’s trustee about the removal of the in-home care attendants. (Ex. 3 at 3-4). David Henion subsequently informed the in-home care attendants, Sharon Clark, and David Sedore, that they were being evicted from Plaintiff’s home and off the property. (Id. at 2); (Ex. 17, Attached hereto and incorporated herein as Ex. 17 is an affidavit of David Henion dated 11/23/16).

 

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. (Ex. 9 at 4.) However, when David Henion arrived at the SCI unit, he informed the Plaintiff that he had evicted Plaintiff’s in-home care attendants because of the County’s requirement that he do so. (Id.) David Henion told the Plaintiff that Pekarek, in her capacity on behalf of Marion County, told him directly “that if the caregivers did not leave, [Plaintiff] would lose the Conditional Use Hardship Clause.” (Ex. 17; Ex. 18). Thus, Plaintiff would be without a home when he returned from his medical treatment. (Ex. 9 and Ex. 10).

 

On July 15, 2016, Plaintiff sent a tort notice to both the 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. (Attached hereto and incorporated herein as Ex. 9 is said tort notice served on 7/15/2016). Since the time of the tort notice, neither Ms. Pekarek nor any representative from Marion County sought input from the Plaintiff regarding his ongoing need for accommodations set forth in the tort notice regarding his care attendants residing with him. (Ex. 10 and Ex. 12).

 

Pekarek contacted the new property trustee, Judy Henion-Nachand, regarding the alleged code violations on the property. (Ex. 19, Attached hereto and hereby incorporated as Ex. 19 is an email from Pekarek to staff). Henion-Nachand is Plaintiff’s sister. Henion-Nachand told Pekarek about Plaintiff’s on-going need for trained in-home caregivers to be in place before her brother could safely return home. (Ex. 3 at 3). Pekarek informed Plaintiff’s family 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. (Ex. 17; E. 18; Ex. 3).Pekarek did not indicate that she would investigate whether any accommodations were available, reasonable, and/or necessary. (Id.; See also Ex. 12).

 

Since December 2016, Plaintiff’s father and sister have 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. (Ex. 3. at 3)(“I told [Pekarek] of my brothers need for caregivers to remain in his home, and that they were not or squatters or renters.”); Ex. 17.)

 

Warren Jackson is the Building and Planning Division manager for the Marion County Public Works. (Ex. 20 at 7:13-15, attached hereto and hereby incorporated as Ex. 20 is the Jackson transcript). He was designated by the County to testify on issues relating to ADA zoning and land use. (Id. at 20:7-11). Jackson testified in deposition that he has received training in the ADA (Id. at 11:23-12:9) and that if an accommodation in zoning was requested, it would likely come to him. (Id. at 21:2-6). However, when asked if there was either a written or unwritten policy that he was aware of that “Marion County has related to ADA zoning and land use, which would include requests for variances and reasonable accommodations,” Jackson report that there is not. (Id. at 20:13-19; 20:20-21-1). When asked how the County handles an accommodation such as a land use or zoning variance, Jackson did not recall having ever received a request related to an ADA accommodation for zoning variance. (Id. at 21:19-22:5). However, Jackson further testified that no logs were maintained by the County for verbal requests for ADA accommodations in land use and zoning (Id at 22:9-13). The County, in fact, had no policy or procedure as to how verbal requests for accommodations were documented. (Id. at 23:2-17).

 

Laura Pekarek is the code enforcement officer for Marion County. (Ex.12 at 16:22-24). At deposition, Pekarek testified that she was the person with the most knowledge concerning temporary and/or conditional hardship permits on properties within Marion County within the last three years that have been cited for zoning and/or land use violations. (Id. at 14:7-12).

Gilman Fennimore, Jr. is the planning director for Marion County. (Ex. 21 at 6:12-17; attached hereto and hereby incorporated as Ex. 21 is the Fennimore transcript). The Country designated Fennimore as the person with the most knowledge regarding availability of usage of temporary and/or conditional hardship permits. (Id. at 16:20-23). He was also designated as the person with most knowledge regarding the revocation of temporary and/or conditional hardship permits. (Id. at 17:10-13). Fennimore testified that there are approximately 50 temporary and/or conditional hardship permits. (Id. at 16:23-17:9). No temporary and/or conditional hardship permits were revoked by the County in the preceding 10 years. (Id. at 17:13-118). As the person designated by the County to testify on issues relating to evictions associated with and/or related to temporary and/or conditional hardship permits, Fennimore also testified that in his 27 years of experience with the County, no persons had been evicted from a premise subject to a temporary and/or conditional hardship permit. (Id. at 18:8-21).

 

Mr. Fennimore erroneously testified that, under state law, the caregivers of a person with a temporary and/or conditional hardship permit could not reside in the permit-holder’s home. (Id. at 31:19-32:15; see also 39:23-44:7). When asked to whom in the County an individual who was seeking permission to allow his caregivers to live in a residence that had a conditional or a temporary hardship permit, would be directed, Fennimore stated it would be the Planning Department. (Id. at 34:21-35:5). When asked further what such an individual would have to do to seek such permission, Fennimore stated they would have to fill out an application “of some type,” but could not say whether there was such an application. (Id. at 35:10-21).

 

Fennimore also indicated that the County did not have “any policies or guidance to help staff determine the cost associated with a request being made by an individual that holds a temporary or conditional hardship permit.” (Id. at 37:3-8). Neither had the County reviewed costs associated with requests by individuals that hold a temporary and/or conditional hardship permit in the last five years, nor reviewed whether a request to allow caregivers to reside in the home of a person that has a temporary or conditional use permit would change the conditional hardship permit program in any way. (Id. at 37:9-38:11). When asked what actions or investigations the County had taken since being noticed through this litigation of the Plaintiff’s need to allow care attendants to reside in his home, Fennimore responded that the County had taken no action nor carried out investigations into the possible accommodations. (Id. at 53: 12-20).

 

Justine Flora was designated by the County to testify on issues relating to County’s ADA policies, practices, and procedures. (Ex. 22 at 12:6-10, attached hereto and hereby incorporated as Ex. 22 is the Flora transcript). Her position with the County is the risks and benefits manager. (Id. at 5:22-25). Flora stated that she had received more than 20 hours of training on the ADA. (Id. at 11: 2-23). However, she did not train County staff in ADA accommodations, nor did she know of anyone else who did. (Id. at 12:25-13:5).

 

Flora testified that she had never received a request to consult with the Marion County planning director or staff nor the Code Enforcement Office regarding accommodations. (Id. at 16:13-16). She had never been consulted regarding the Plaintiff and his request for an accommodation. (Id. at 17:10-19).

 

V. STATUTORY FRAMEWORK

 

A. Oregon’s Exclusive Farm Use Zones State

 

ORS 215.203 authorizes counties to adopt EFU zones where, with certain exceptions, land is to be used exclusively for farm use. Wetherell v. Douglas Cnty, LUBA No. 2012-05, *4 (Or. LUBA, 2013). “The non-farm use exceptions are numerous and far-ranging.” Id. Subsection (2) of ORS 215.283 lists 27 non-farm uses that are approved in EFU zones. ORS § 215.283(2)(l), provides an exception for “hardship” dwellings:

 

One manufactured dwelling or recreational vehicle, or the temporary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative of the resident. Within 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. The governing body or its designee shall provide for periodic review of the hardship claimed under this paragraph...

 

Under this section, “hardship” means “a medical hardship or hardship for the care of an

aged or infirm person or persons. OAR 660-033-0130.” ORS § 215.283(2)(l)

 

Under subsection (u), ORS § 215.283(2) further provides that local governments may allow “room and board arrangements for a maximum of five unrelated persons in existing residences” in EFU zones.

 

B. Marion County’s Conditional Use Hardship Permits

 

Under Marion County Code (“MCC”), in order to be approved for the use of a secondary manufactured home/RV in an EFU zone under hardship provisions, the applicants must demonstrate compliance with the specific criteria listed in MCC Section 17.120.040. These

include:

 

(a) For the purposes of this subsection "hardship" means a medical hardship or hardship for the care of an aged or infirm person or persons.

 

(b) A doctor of medicine or licensed psychologist shall sign a statement indicating the physical or mental condition that prevents the person(s) with the hardship from providing the basic self-care needed to live on a separate lot. The statement shall also attest that the physician or licensed psychologist is convinced the person(s) with the hardship must be provided the care so frequently or in such a manner that the caretaker must reside on the same premises.

 

(c) Those providing the needed assistance shall be related by blood, marriage or legal guardianship and reside in another residence on the property. If evidence is presented that there is no family member able to provide the needed care, the caretaker may be someone else, provided the property is located in a zone other than the EFU, SA, FT or TC zones. In the EFU, SA, FT and TC zones, occupancy of the hardship mobile home or recreational vehicle is limited to the term of the hardship suffered by the existing resident or a relative as defined in ORS 215.283.

 

(d) Those providing the care must show that they will be available and have the skills to provide the primary care required by the doctor or psychologist.

 

(e) One of the residences shall be removed from the property within 90 days of the date the person(s) with the hardship or the care provider no longer reside on the property. In the case of a recreational vehicle it shall be rendered uninhabitable by disconnection from services. An agreement to comply with this requirement shall be signed by the property owner and the care providers. Oregon Department of Environmental Quality removal requirements also apply.

 

(f) The mobile home or recreational vehicle shall to the extent permitted by the nature of the property and existing development:

 

(1) Be located as near as possible to other residences on the property;

 

(2) On EFU, SA, FT and TC zoned property, be located on the portion of the property that is least suitable for farm or forest use, if it is not feasible to locate it near an existing residence;

 

(3) Not require new driveway access to the street;

 

(4) Be connected to the existing wastewater disposal system if feasible. The disposal system shall be approved by the county sanitarian.

 

(g) The use is intended to be temporary, shall be subject to review every year, and shall continue to meet the above criteria in order to qualify for renewal.

In addition, MCC 17.136.050(D)(4) provides for permitting of five unrelated persons in existing residences in EFU.

 

C. The ADA and Rehabilitation Act

 

The ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1)&(2). Updike v. Multnomah Cnty., Corp., 870 F.3d 939, 949 (9th Cir. 2017). Title II of the ADA provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To prove that a public program or service violated Title II of the ADA, a plaintiff must show that: "(1) he is a ‘qualified individual with a disability’; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g en banc (Oct. 11, 2001).

 

Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, 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.” Updike, 870 F.3d at 949. "Title II of the ADA was expressly modeled after § 504 of the Rehabilitation Act." Duvall, 260 F.3d at 1135. To bring a § 504 claim, a plaintiff must show that "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Id.

 

Title II and § 504 include an affirmative obligation for public entities to make benefits, services, and programs accessible to people with disabilities. See id. at 1136; Pierce v. District of Columbia, 128 F.Supp.3d 250, 266–67 (D.D.C. 2015)(citing 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.130(b)(1)(ii) ), reconsideration denied, 146 F.Supp.3d 197 (D.D.C. 2015).

 

Under both Title II of the ADA and § 504 of the Rehabilitation Act, a plaintiff must show that he was excluded from participating in or denied the benefits of a program's services or otherwise discriminated against. Updike, 870 F.3d 950. "[C]ompensatory damages are not available under Title II or § 504 absent a showing of discriminatory intent." Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); see Duvall, 260 F.3d at 1138. To show intentional discrimination, the Ninth Circuit requires that the plaintiff show that a defendant acted with “deliberate indifference,” which requires “both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that ... likelihood.” Duvall, 260 F.3d at 1139.

 

“When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.” Id. To meet the second element, the defendant's failure to act “must be a result of conduct that is more than negligent, and involves an element of deliberateness.”

 

Id. A public entity may be liable for damages under Title II of the ADA or § 504 of the Rehabilitation Act "if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons." Mark H. v. Lemahieu, 513 F.3d 922, 937–38 (9th Cir. 2008). The "failure to provide reasonable accommodation can constitute discrimination." Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). “A public entity may not disregard the plight and distress of a disabled individual.” Updike, 870 F.3d at 951.

 

V. ARGUMENT

 

A. Marion County’s MCC Section 17.120.040 Policy for Conditional Use Hardship Permits is discriminatory on its face under the ADA and Section 504 and as applied because the Defendants failed to provide Plaintiff with a reasonable modification in its policies, practices, or procedures as required under the ADA and Section 504.

 

On its face, the Defendant’s ordinance governing the issue at hand—whether the Plaintiff’s Conditional Use Hardship Permit even allowed for him to have live-in care attendants—is discriminatory under the ADA and Section 504. Under Section 17.120.040 of the MCC, “those providing the needed assistance shall be related by blood, marriage or legal guardianship and reside in another residence on the property.” In instances where there is no relative on the property who can care for a disabled permit-holder, the ordinance provides, “If evidence is presented that there is no family member able to provide the needed care, the caretaker may be someone else, provided the property is located in a zone other than the EFU, SA, FT or TC zones.”

 

Here, while the Plaintiff’s parents, David and Betty Henion, were able to provide some level of care to the Plaintiff in the early years after his accident, over time, his care has become more complex and his parents have aged to the point where they have neither the strength nor training to safely care for the Plaintiff. Since the Property is located in the EFU zone, the only option for Plaintiff and other holders of the hardship permit who don’t have family who are physically able or trained to care for them is to surrender the hardship permit and move—an option that is not required of individuals who do not suffer the severity of disability borne by the Plaintiff. The Defendants have offered no rationale as to why individuals with disabilities, many of whom cannot safely live alone, are prohibited from having caregivers live with them in the same home merely because they live in a EFU zone.

 

The Defendant’s enforcement of MCC Section 17.120.040(c), as applied, also violated Plaintiff’s rights under the ADA and Rehabilitation Act. Title II of the ADA and its concomitant regulations mandate that, “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The mandate of Section 504 is the same. To prove that a public program or service violated Title II of the ADA or Section 504, a plaintiff must show that:

 

"(1) he is a ‘qualified individual with a disability’; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g en banc (Oct. 11, 2001).

 

There is no genuine issue as to whether the Plaintiff was, or remains, a “qualified individual with a disability” and that the Defendant had notice of this—both at the administrative level and in the case of County Code Enforcement officer Laura Pekarek. The Plaintiff, since first obtaining a Conditional Use Hardship Permit, was required to annually provide a physician’s certification as to the Plaintiff’s condition as “physically handicapped”. Ms. Pekarek, upon entering the Plaintiff’s residence on November 5, 2015, obtained first-hand knowledge of the extent of the Plaintiff’s physical disabilities.

 

The Defendant had notice, dating back to the summer of 1998, that the Plaintiff needed full-time, live-in caregivers, and, at times, would need to leave the Property and his home to obtain medical services, and could be away for weeks, if not months. Even in 1998, the Defendant’s response to Plaintiff’s needs, which he clearly and emphatically described in his June 28, 1998 response to the Defendant’s letter to his grandparents, disregarded its duties under the ADA and Section 504. In the following two decades, the Plaintiff’s need for constant care by trained providers did not diminish; on the contrary, the Plaintiff’s condition worsened as he aged. The Defendant continued to be on notice of Plaintiff’s need for accommodation when, in the November, 2015, code enforcement officer Pekarek entered the Plaintiff’s home, saw his deteriorated state, and was informed that he had two caregivers living with him on a full-time basis. However, rather than investigate whether an accommodation of the County’s policies was appropriate, the Defendant merely enforced a discriminatory statute. By the time the Plaintiff filed the tort notice in July, 2016, the Defendant had 18 years of notice of the Plaintiff’s need for experienced and reliable assistance, and yet did nothing.

 

The Plaintiff also contends that the District’s failure to reasonably modify policies, practices and procedures, or to provide him an individual accommodation, denied him the benefits of the County’s services, in particular, the full benefits of his Conditional Use Hardship Permit, resulting in the inability for the Plaintiff to safely to Oregon and reside in his home on the Property. The Defendant provides a variety of code enforcement services, including the provision of Conditional Use Hardship Permits to allow an additional temporary residence on land zoned as EFU, in the case the landowner or relative cannot maintain a residence separate from their family’s residence on EFU-zoned land. The Defendant may also revoke a permit, or fine the property-owner, if the permit-holder violates the terms of the permit. The Defendant also had at the time of first notice—and continues to have—the duty to investigate whether requested accommodations under, or modification of Conditional Use Hardship Permits policies or terms, were reasonable and/or changed the nature of the Conditional Use Hardship Permit program. See Updike, 870 F.3d at 954, citing Duvall, 260 F.3d at 1139 (“It is well-settled that Title II and § 504 ‘create a duty to gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary.’”)

 

Gilman Fennimore, Jr., the planning director for Marion County, testified that he did not investigate whether allowing care attendants to remain in Plaintiff’s while he was in the hospital was a reasonable accommodation. (Fennimore Dep. at 53:12-20). Pekarek also stated that she took no actions on behalf of the County in her role as a code enforcement officer to determine whether or not the Plaintiff could leave his care attendants in his home during an extended vacation or medical trip. (Pekarek Dep, 115:14-19.) Defendant employees, Jackson or Flora, in their roles as persons knowledgeable of County ADA practices and policies, could name no actions the Defendant took to investigate whether the Plaintiff’s need for his trained care attendants to reside with him, and be available when he returned from extended hospital stays and medical procedures, were reasonable accommodations. (Jackson Dep., 21:19-22:5; Flora Dep., 17:10-19). In their own words, the Defendant’s witnesses, one after another, attested to the fact that the Defendant did not investigate the reasonableness of the need for accommodation expressed by the Plaintiff, as required under both the ADA and Section 504.

 

The Plaintiff, because his severe physical disabilities left him wholly unable to care for himself without round-the-clock assistance, asked the County to modify their policies by allowing his experienced caregivers to remain in his manufactured home, permitted for Plaintiff’s residential use through a Conditional Use Hardship Permit, including when he was required to seek extended medical care or otherwise leave the Property. The Defendant refused to make such a modification in their policies, practices and procedures or provide the Plaintiff with an individual accommodation that would allow his specially-trained care attendants to remain in the manufactured home, and be there to care for him upon his immediate arrival. The Plaintiff’s claim, therefore, implicates the Defendant’s refusal to consent to—or even investigate—a straight forward request for a reasonable modification under the ADA and Section 504. See 28 C.F.R. § 35.130(b)(7).

 

The Defendant’s failure to accommodate Plaintiff’s need for round-the-clock, live-in caregivers ignores the very purpose of the ADA, which requires public entities to modify otherwise neutral policies so that disabled persons can be accommodated. Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996)(sight impaired person whose guide dog was held to the same 120-day quarantine that applied to all dogs entering Hawaii was entitled to reasonable modification of policy); Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 45 (2nd Cir. 2002)(a municipality discriminates in violation of the ADA if it refuses to make changes to traditional rules or practices).

 

The Defendant’s failure to consent to the Plaintiff’s request accommodation, and the Defendant’s threat to fine the Property if the Plaintiff’s care attendants did not vacate the manufactured home, directly infringed a benefit sought by the Plaintiff. It is a benefit to be able to participate in the County’s code compliance without being penalized. The Plaintiff was denied the benefit of having the opportunity to comply with the code without the Property being threatened with large daily fines and the Plaintiff himself threatened with the loss of his home. All of these are benefits of the Defendant’s services, policies and procedures that are readily available to non-disabled homeowners in a way that they were not available to the Plaintiff. Non-disabled homeowners do not qualify for Conditional Use Hardship Permits. Non-disabled homeowners do not need round-the-clock, live-in caregivers. Non-disabled homeowners are not required to be hospitalized due to their physical disabilities/conditions for possibly months at a time. The Plaintiff, because his disabilities requires round-the-clock, live-in care and at times must be absent from his home for lengthy medical treatment, asked the Defendant for a modification of their rules. The Defendant refused, and continues to refuse, to modify their rules to allow the Plaintiff access to this benefit enjoyed by other Conditional Use Hardship Permit holders who did not require the level of care—due exclusively to his disabilities—that the Plaintiff required. This blatant violation of the ADA and Section 504 has left the Plaintiff an exile in a foreign country, unable to return to his home and family.

 

VI.CONCLUSION

 

In summary, the Plaintiff has pled that there are no genuine issues of material facts as to whether the Defendant violated the ADA and Section 504 by denying the Plaintiff reasonable accommodation and modification of the Defendant’s policies, practices, and procedures.

 

Therefore, the Plaintiff requests that this Court grant the Plaintiff’s Motion for Summary Judgment.

 

DATED this 6th day of June, 2018.

/s/ Melissa D. Wischerath

Melissa D. Wischerath, OSB #130194

Attorney for Plaintiff

 

CERTIFICATE OF SERVICE

 

I hereby certify that I served the foregoing PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH MEMORANDUM on the following persons:

 

Kenneth S. Montoya

Sr. Assistant Legal Counsel 555 Court Street N.E.

P.O. Box 14500 Salem, OR 97309

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;

 

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

 

      Americans have been fighting for Human and Civil Rights since the dawn of ages and were still fighting for dignity, to be accepted as equals, to be treated fairly, and yes, to be treated special, because our plight is serious and difficult.

 

      Yet we don’t ask of others to feel sorry for us or even care about who we are as a person, just don’t discriminate against us because were severely disabled.

 

      To truly understand, to truly know of the plight, the difficulties of struggling to survive, comes only from within the hearts and minds of folks that create codes, statutes and regulations.

 

Without consideration of the special needs and plight of a severely disabled person(s), enacting codes, statutes and regulations can hinder the survival of us all.

 

      If only severely disabled had voices loud enough to make President Trump hear my words, at time in history when Americans elected officials refuse to take notice.

 

      “The minimum accommodations that will give the handicapped or disabled persons adequate relief.”

     

      Soldiers have a long honored code of not leaving anyone behind, mostly once you have been killed, but MARION WOULD RATHER KICK A DISABLED VETERAN TO THE CURB BECAUSE HE WAS AWAY FOR MEDICAL TREATMENT AT A REGIONAL SPINAL CORD INJURY UNIT.

 

      I SERVED MY COUNTRY HONORABLY for 5 ½ years in the U. S. Navy, resulting in a service connected disability and two years later broke my neck in a construction accident, and now, my final fight for my home and residence on a small farm that is paid for, placed in a living Trust so that my Father and I, blood related, to his father and mother, Charles L. and Alice Henion, would have homes to live in until we both pass away.

 

      The reluctance of attorneys to go against states or state agencies illustrates this fact, unless you yourself have deep pockets. I posted my law suit internationally because U. S. Media Outlets no longer report the truth and can no longer be trusted to inform folks of anything, without first changing the facts.

 

      Marion County representative actions are costing me a lot of money right now every month and unless Marion County's discriminating tactics, policies, practices, procedures, the authority for Marion County's Code Enforcement representative for the Sheriff's office to conduct the business of code enforcement in a manner that comes off as threatening the loss of a cup Medical Hardship for a dwelling termination in 60 days if care givers don’t leave, in the absence of me from my dwelling, forcing my father to evict both of them in order to save the CUP, so my father and sister both allege.

 

     Yet Marion County Codes say if your absent from the dwelling longer than 60 or 90 days, your home must remove your dwelling off the EFU Property, so being exiled from my home with no care givers to come home to, whom would work with others providing morning activities, driving, etc., all whom would live with me, I was forced to sue Marion County for discrimination, intentional and deliberate on the part of Marion County, blatantly throwing me to the curb by their Code Enforcement Officers actions, whether they be threats or intimidation, discriminatory actions that prevented me from returning home from a lengthy. 

 

     I cannot legally live in my dwelling unless family members are my care givers and they cannot live in as care givers either. I feel like an outcast in a country that doesn't appreciate my service to my country.

 

      How many people can do the SEAL Training in America?

 

     Not very many and I think I was the first participating observer of First Phase and the one that typed the SEAL Training manual in 1982. I'm not going to go into everything I did in the navy as my web sites and books clearly address duties while serving. But I can tell you I was tasked heavily.

 

TO GIVE OTHERS A GLIMPSE OF JUSTICE WHEN ADVERSITIES GREATER THAN WE CAN HANDLE ALONE AFFECT OUR LIVES, LAW SUIT BOOKS OF MY CASE AGAINST MARION COUNTY WILL BE PUBLISHED, ILLUSTRATING THE VALUE OF PATIENCE AND RESPECTFUL DISAGREEMENT TO SETTLE IN DIFFERENCES BETWEEN CITIZENS AND PUBLIC ENTITIES, IN ORDER TO DO AWAY WITH POLICIES, PRACTICES, PROCEDURES THAT ARE DISCRIMINATORY, ALLEGED THREATS OF TERMINATING A CUP MEDICAL HARDSHIP DWELLING UNLESS CARE GIVERS ARE EVICTED BY MARION COUNTY'S CODE ENFORCEMENT OFFICER AND MARION COUNTY CONDITIONAL USE MEDICAL HARDSHIP CODES AND APPLICATIONS, THAT DELIBERATELY, WITH OUT CONCERN, DISCRIMINATE AGAINST THE DISABLED, SEVERELY DISABLED, ELDERLY AND IN FIRMED. DOING NOTHING TO ACCOMMODATE A SEVERELY DISABLED PERSON, BECAUSE OF A COUNTY CODE OR APPLICATION, DOESN'T FOR GIVE THE HUMAN ELEMENT OF OUR OFFICIALS OF GOVERNMENT, WHOM DISREGARD THE HARM OF THEIR ACTIONS, AFTER BEING NOTIFIED THAT AN ACCOMMODATION IS NEEDED TO KEEP LIVE IN, NON RELATED CARE GIVERS IN A CUP MEDICAL HARDSHIP DWELLING, WHILE A SEVERELY DISABLED PERSON AND DISABLED VETERAN IS BEING HEALED, 100 PERCENT COST BORN BY THE AMERICAN PEOPLE, FOR THE VETERANS SURVIVAL, AT A REGIONAL SPINAL CORD INJURY UNIT, IS AN OFFENSE TO THOSE WHO HAVE SERVED OUR COUNTRY TO UP HOLD OUR WAY OF LIFE, LIBERTY AND FREEDOM, AND THE FEW AMERICANS THAT RESPECT OUR SERVICE TO THEM ALL.

 

      If I don't stand up this last time before I die, then I wouldn't be worthy to be a veteran. I don't mind so much if someone doesn't respect me for serving in the Navy, but when someone jeopardizes my life, I must either fight or lay down and give up.

 

      Marion County's CUP Medical Hardship for Dwelling practices, policies ,procedures, code enforcement officer of Marion County's alleged threats by my father and sister, Codes and Applications  that are discriminatory kicked me to the curb, making me homeless and when it happens to you when you are out of the state, involved in medical treatment and operations at a Veterans Medical Center, losing your care givers is nothing more than a death sentence un less you have options, options in my case that finds me living in Baja, Mexico as an illegal alien, with Mexican Care Givers providing 24/7 care.

 

      Marion County made me homeless when the Code Enforcement Officer influenced through intimidation, my Father who believed the Conditional Use Permit (CUP) Medical Hardship would be terminated if he, the farms manager, didn’t evict two care givers from my dwelling, so he has stated as my sister Judy also testified to.

 

      There are many ways to force the eviction of care givers in your absence from your property. Threatening in writing (1998), thousands of dollars a day fines and verbal threats on the phone, are tactics Marion County uses.

 

      I have been denied my home I have had since 1991 because non related care givers cannot care for my 24/7 needs, living with me in my home, something a person that is not disabled need not address. 

 

       By the time this happened you would be in a nursing home without care from someone and for sure homeless, which would not relieve the hardship the county unfairly has forced me to endure.

 

     Marion County, if the care givers were not evicted, would force the removal of my home in my absence within 60-days and my Father feared, that if he didn’t evict David Seadore and Sharon Clark, I would lose my home and threats of said same to and eventual confiscation of the farm, alleged by my Sister Judy, would happen if in addition, three mobile homes were not removed; an ag building addition permit supposedly required, that my father never got after a car crashed into the ag building before 2005, when he rebuilt and added a small room to the ag building; no current tags of vehicles on the property in short, the major issues facing my Father at the time he acted to save my home.

 

      The three mobile homes have been on the farm since 1997, 2003 and mid 2008 or 2009, so I think grandfather clauses could have been explored or variances could have been offered in behalf of me, more than say the farm, while the ag building rebuild and addition I don’t think needed a permit.

 

         I've invested over $100,000.00 in my home since 1990 and I have no Civil Rights in a Marion County home with a hardship and my home was invested in by my Workers Compensation Carrier, Arrowpoint Capital, bringing my doors, ramps and showers up to date, to include settled issues of hot water, AC and heating addressed in my supplemental declaration.

 

      I also invested $10,000.00 in the farm, buying a 20’ flatbed truck to haul off garbage as part of the farm clean up. Increased expenses is also addressed to include higher care giver wages and travel cost.

 

     Without care givers, your house is as empty as a glass upside down, becoming “Homeless” basically, until you can recoup economically, nearing three years of increased Care Wages from 6 May 2016 to 31 December 2018 Declaration, and Increased Expenses from 1 June 2016 to 31 December 2018 Declaration.

 

      My health is as stable as can be and I’m not depressed, as I don't drink, smoke or do white drugs, yet my body is weaker now and I get more infections, but I can tell you this incident has really affected me, challenging my ability to cope with life and challenged me to write books concerning my Law Suit, and for the better.

 

     Emotionally, I’m heart broken, my anxiety is at a high state and physically my anxiety and stress level affects my breathing.

 

      The actions of Marion County has crippled me economically and left me with no American live in care givers to return home.

     I exercise using a cycle and standing table, range of motion of my legs by care givers. I spend time at my desk, writing books.

 

     When I locate live in care givers, they support and back up my primary care givers, care for my house, laundry, night shifts, and condom caths, and much more, to include baby setting me.

 

      What’s my life worth? The American People are paying 100 percent of my medical care and treatment, that includes annual visits to a Regional Spinal Cord Injury Unit and as well, my workers compensation insurance company covers 100 percent of my severe disability, having fallen from a roof February 5, 1985, and broke my neck.

 

      When you’re fortunate enough to have private insurance, the Veterans Administration liens them for payment, so I’m not a burden to the tax payer longer than it takes the VA to get reimbursed. However, there is on occasion non related medical treatment the VA has provided to me that has cost the tax payer.

 

      Now the Veterans Administration tells us spinal cord injured disabled veterans to be positive and don’t think about suicide.

 

     The only way I can fight thoughts of suicide is to fight for my survival and since the cost of my survival is around $200,000.00 annually, I spend my hours each day writing books, so as to introduce historically accurate U. S. Aircraft Carrier Development and Naval History.

 

CODE ENFORCEMENT OFFICER OF MARION COUNTY ENTERS OUR FARM TO COLLECT EVIDENCE OF SOLID WASTE VIOLATION WITHOUT NOTICE

 

      My nightmare began in November 2015 when the Code Enforcement Officer of Marion County, Laura Pekarek’s came on our property in November 2015 without notice and with no search warrant, entering my dwelling while I was naked in bed with law enforcement officers from the Sheriff’s Department, spoke to me and then entered buildings and took photos to collect evidence of solid waste violations.      

 

      Property solid waste violations can affect a Conditional Use Medical Hardship for a dwelling, while Marion County feels it has no obligation to offer any solutions to the property owners or the property’s recipient of a conditional use medical hardship in order to keep a severely disabled person in their dwelling, by offering variances or grandfathering for three trailers used for storage or chickens.

 

     I believe the fourth amendment was violated when a warrant was not served on my father or me when the Sheriff’s Law Enforcement Officers and Code Enforcement Officer came on the farm to collect evidences of solid waste violations in order to cite and levy huge daily fines my law suit stopped.

 

     It’s one thing to trespass to talk to the owner or arrest someone, but to seek evidence of code enforcement violations is best handled through a warrant specifically stating the intentions of law enforcement officers, while the aforementioned huge introduction was meant to introduce the issues in a more broad sense to show that policies and practices to include writing county codes should adhere more closely to ORS’s when applicable.

 

      The first letter from Code Enforcement that presented code enforcement action against the farm was dated March 2, 2016.

 

       Letter from David Henion asking for codes cited he violated 21 March 2016. 

 

      The second letter from Code Enforcement was March 29, 2016 and gave until April 22, 2016 to take the requested actions. 

 

NOTIFICATION CARE GIVERS WERE EVICTED FROM MY DWELLING

 

      When I left for medical treatment at the Regional Spinal Cord Injury Unit, Veterans Affairs Healthcare System, 3350 La Jolla Village Drive; San Diego, Ca. 92161 in late December 2015, I never thought I’d need two operations.

 

     Arriving the RSCIU in December 2015, it was detected I needed a kidney stone removal operation. In May 2016 I had the operation and then I found out I needed a TURP Operation.

 

       I’m receiving 100 percent medical treatment from the veterans administration, the cost paid for by Americans, as I’m a disabled veteran made homeless by Marion County because I had to spend longer than 60 days away from my home while undergoing lifesaving medical treatment, during which time my care givers were ordered out of my home on a half million dollar farm paid in full.

 

     The Code Enforcement Officer of Marion County, Laura Pekarek’s spoke to my Father before May 2016 and her intent was that my care givers had to go since I wasn’t there and had they not been evicted by the farms manager, my Father, he would be faced with the termination of my Conditional Use Medical Hardship for a Dwelling by Marion County.

 

      My Father showed up to the RSCIU in May 2016 to tell me I had no care givers to go home to.

 

MEXICAN CARE MANGER AND CARE GIVER AND TWO OTHER MEXICAN FRIENDS SERVING AS CARE GIVERS RESCUED ME

 

      When my extended away period began, my Mexican Care Manager and Mexican 

Care Givers helped me greatly. My Care Manager wanted to go back to college to further his degrees, but faced with no one to care for me, unable to go back home, my Care Manager agreed to continue caring for me, having re-opened his house along the ocean, a garage revamped into a living quarters, as the previous quarters was disassembled in May 2014 when I left for Oregon. The ocean view house of my Care Manager where I’ve been living since becoming home-less May 6, 2016, has been great, but my Care Manager wants to go back to college to become a lawyer or civil electrical engineer or may be a nurse. For me, traveling from Oregon to Mexico and back will conclude by January 2019. In the many years of traveling back and forth that was before 2008, I had Americans as care givers or left care givers in my home to await my return, as care givers in both countries are necessary, when I traveled back and forth, yet after my workers compensation insurance carrier revamped the handicapped portions of my house, I was planning on staying home and not traveling anymore, as I had two care givers living with me.. Then I got ill, needed medical care and split to a hospital I trusted in La Jolla, California.

 

     My Mexican care giver, who rescued me, is believed to be the great, great nephew of the first President of Mexico during the interim government of Eulalio Gutiérrez Ortiz (February 4, 1881 – August 12, 1939) was a general in the Mexican Revolution from state of Coahuila. He is most notable for his election as provisional president of Mexico during the Aguascalientes Convention and led the country for a few months between November 6, 1914, and January 16, 1915. The Convention was convened by revolutionaries who had successfully ousted the regime of Victoriano Huerta after more than a year of conflict. Gutiérrez rather than "First Chief" (Primer Jefe) Venustiano Carranza was chosen president of Mexico and a new round of violence broke out as revolutionary factions previously united turned against each other. "The high point of Gutiérrez's career occurred when he moved with the Conventionist army to shoulder the responsibilities of his new office [of president]."[1]  Gutiérrez's government was weak and he could not control the two main generals of the Army of the Convention, Pancho Villa and Emiliano Zapata. Gutiérrez moved the capital of his government from Mexico City to San Luis Potosí. He resigned as president and made peace with Carranza.[1] He went into exile in the United States, but later returned to Mexico.[1] He died in 1939, outliving many other major figures of the Mexican Revolution

 

Ref. 1 - Marcoux, Carl Henry. "Eulalio Gutiérrez" in Encyclopedia of Mexico, vol. 1, p. 620. Chicago: Fitzroy Dearborn 1997.

Ref. 2 - Marcoux, "Eulalio Gutiérrez", p. 619.

Ref. 3 - Cumberland, Charles C. Mexican Revolution: The Constitutionalist Years. Austin: University of Texas Press 1972, p. 182.

Ref. 4 - Quoted in Enrique Krauze, Mexico: Biography of Power, New York: Harper Collins 1997, p. 722.

Ref. Family Research

 

CONSTRUCTORA IMPERIAL - FABRICACION DE METAL, REFRIGERATION, AIRE CONDICIONADO, ELECTRICIDAD, PLOMERIA CEMENTO, CONTRACTADOR GENERAL, EQUIPO MAQUINARIA PESADA-OPERACIÓN Y TRANSPORTACION, DOMPE, RETRO Y SERVICIOS AUTO TRANSPORTE - JOSE HERBERTO GUITERREZ CASTRO, R.F.C. GUCH640829R411 - C.U.R.P. - UCH640829HCHTSVC9

 

NOTIFYING EVERYONE I THOUGHT COULD SET THINGS RIGHT

 

     When I heard the news from my father, that care givers I left in my home were forced out, I immediately began writing letters about my plight, beginning with Presidential Material, that included an explanation about my situation posted on President elect Donald Trump’s facebook and as well, Congressman Paul Ryan and other politician facebook pages. 

 

      I also posted a letter on the Governor of Oregon’s facebook page and her Attorney General on 6 May 2016. 

 

      I notified the Governor of Oregon, her Attorney General, The OREGON LEGISLATIVE ASSEMBLY, U. S. Congressional Representatives, News Agencies in the entire state of Oregon and the Public at large through facebook as well as U. S. House and Senate Representatives in 2016 and the 79 OREGON LEGISLATIVE ASSEMBLY in 2017 and in September 2018.

 

      Writing these letters did not amount to anything.

 

      Only Congressman Earl Blumenauer wrote me back in 2017 to thank me for contacting him and in 2018 I think it was, to tell me he forwarded my letter of Marion County over haul of their Conditional Use Medical Hardship for a dwelling, to my representative, but no response as was no response from every state representative I contacted.

 

     Not even the Governor of Oregon or her Attorney General will lift a finger to do away with discriminatory practices, policies, procedures, codes and applications of Marion County.

 

      When State Governments elected representatives refuse to condemn discriminatory policies, practices, procedures, codes and applications of Marion County and as well, noncompliance with ORS’ and OAR, it falls on the federal government to step in.

 

     When U. S. Congressional representatives of Oregon refuse to condemn said same, then again, the federal government must step in.

 

     So I had to sue Marion County in u. S. District Court.

 

     The initial three month extended away period has ended up being almost 3 years living abroad in Baja, Mexico, with no care givers to go home to after my first operation in May 2016 and only one Mexican Care Giver that can bring me home.

 

      While I may of had an ongoing Law Suit against Marion County for discrimination, their actions exiled me to Mexico, and not to  address Marion County's policies, practices, procedures, codes and applications that discriminated against me, a severely disabled person, disabled veteran, one day, in firmed and elderly using the conditional use medical hardship permitted dwelling is not satisfactory, nor in keeping with Title II of the ADA and § 504 of the Rehabilitation Act.

 

      When we are faced with Codes and Applications that’s language is discriminatory, revision is necessary. In my case, Marion County failed me as a severely disabled person, as did the Governor of Oregon and her Attorney General, who I notified of the in justice I was experiencing, and they made no investigation into Marion Counties Policies, Practices, Code or Application for the Conditional Use Medical Hardship for dwelling permitted program.

 

MY FIRST LAW SUIT BOOK CONSISTS OF EVERYTHING I HAD TO LEARN TO FILE A CASE AGAINST MARION COUNTY FOR DISCRIMINATION

 

      My first Law Suit Book is as a result of leaving home for the Veterans Medical Center, La Jolla, California in late December 2015, via the ER. After several weeks in the Regional Spinal Cord Injury Unit, I was told to come back for surgery in April, so I went to Mexico where I lived before in April 2014. By May 6, 2016, after my first operation, I found out I couldn’t go home, so I went back to Mexico.

 

      My first Law Suit Book consist of Marion County Conditional Use Medical Hardship 1990 Application and current county application/Marion County Codes relating to Conditional Use Medical Hardship for dwelling permit renewed annually, physicians, certificates, limited satellite photos of the farm from 1994 to 2016, letter from the ACLU (Presented in this chapter), laws regarding search warrants or notification to inspect a County Conditional Use Medical Hardship for Dwelling, and much more. Complaints filed with the court, Precise Material Facts, judges orders, public comments and political correspondence posted on the internet, Marion County Conditional Use Medical Hardship 1990 Application and current county application/Marion County Codes relating to conditional use medical hardship permit renewed annually, physicians, certificates, limited satellite photos of the farm from 1994 to 2016, laws regarding search warrants or notification to inspect a conditional use permitted dwelling, and much more titled:

 

WHAT I LEARNED TO WRITE AND FILE A COMPLAINT AGAINST MARION COUNTY IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, EUGENE AND PORTLAND DIVISION, RESULTING IN A MOTION FOR APPOINTMENT OF PRO BONO COUNSEL

 

     My father, David C. Henion, wrote is 1 statement 12 May 2014. 

 

     I contacted the ACLU thinking they could help but they could not.

 

Their Response:

 

ACLU - AMERICAN CIVIL LIBERTIES UNION - June 22, 2016

P.O. Box 40585, Portland, Oregon 97240 (503) 227-3186   •   www.aclu-or.org

 

ACLU - AMERICAN CIVIL LIBERTIES UNION

P.O. Box 40585, Portland, Oregon 97240 (503) 227-3186 www.aclu-or. org

 

Dear Mr. Henion,

 

Thank you for contacting the American Civil Liberties Union of Oregon concerning the issues you have described in your web submission.  As you may know, the ACLU of Oregon is a small, private, nonprofit organization funded entirely by private donations. Typically, the cases we accept are handled by lawyers in private practice who donate their time.  As a result, we offer legal assistance in only a small number of cases each year.

 

Consequently, we must choose cases that most clearly invoke significant civil liberties and civil rights issues. We focus on protecting the rights of individuals to be free from excessive government intrusion and the right to receive equal protection under the law. These liberties include the rights of freedom of speech, press, and religion, the right to be treated equally and without discrimination on the basis of race or sex, and the right to be free of abusive police conduct. Among these cases, we are forced to limit our representation to "impact cases," i.e., those that present new legal issues or affect large numbers of people.

 

We cannot assist in cases that depend on establishing facts. We are generally unable to get involved in disputes between private parties, with private employers, or private organizations. We also cannot intervene in a situation where an attorney has already been retained unless the attorney personally requests assistance, and even then, all the other criteria are still in place.

 

Based on the above criteria, we have concluded the ACLU is unable to provide you assistance. Please be assured, however, that this does not reflect on the worthiness of your case.

 

I have enclosed the ACLU of Oregon's Referral and Information sheet. One of the organizations listed may be able to assist you. The Oregon State Bar, listed below, can assist you in retaining an attorney. I regret we are unable to help you further.

 

Sincerely,  

Mathew dos Santos, Legal Director

Enclosure: ACLU of Oregon Referrals and Information

 

The ACLU is not a traditional law firm. This letter is neither a legal opinion nor a formal statement of ACLU policy. It is intended only to advise you whether your situation meets criteria for ACLU involvement.

 

             I was disappointed the ACLU didn’t take my case, since language in several County Codes or Applications, practices and policies are discriminatory, affecting hundreds of disabled, infirm, elderly and severely disabled.

 

     After the ACLU turned me down, I sued on my own. Civil Rights Attorneys are paid from the entity sued. Within 180 days I notified Marion County in the forum of written notice of my intent to sue them. “It would be safest to make this written notice within 180 days of the first letter, calculated to be August 29, 2016, I was told by a Lawyer explain the law to me.”

 

       Notification of Law Suit was sent to Marion County, July 14, 2016. 

 

      I directed the notice to the county at its principal administrative office and to the county attorney’s office. These are:

 

      Marion County Board of Commissioners and Marion County Legal Counsel, P.O. Box 14500, Salem OR  97309.

 

       Marion County is a local government body whose responsibility is to oversee the Marion County Code Enforcement, a division of the Sheriff’s Department.

 

       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.

 

       My July 14, 2016 tort letter to Marion County announcing I was going to sue them, followed with declaration that I am the plaintiff in the above entitled proceeding; 

 

that, in support of my request to proceed without prepayment of fees under 28 U.S.C ' 1915

(APPLICATION TO PROCEED IN FORMA PAUPERIS), I declared was unable to pay the fees for the m proceedings or give security therefore and that I am entitled to the relief sought in the complaint.

 

      Before I wrote my Complaints, I had no attorney to represent me, nor did I have Laura Pekarek, Code Enforcement Officer for Marion County and representative of Marion County Testimony, during her deposition to include satellite photos as far back as 1994 of our farm.

 

      After I revised my Complaint and only after the Judge requested that I do so, A U. S. District Judge asked if any lawyer in the Eugene, Oregon Courts system would take my case pro bono. An attorney began to represent me 1February 2017,Motion for Appointment of Pro Bono Counsel 1 February 2017.

 

        Once an attorney was sought after by the Judge at my request once my Revised Complaint captured the Judges attention, I began researching and clarifying wrongs done to me in my declaration and Law Suit Books Introductions which the Judge never saw, merely expounding evidences and discrimination of alleged complaints presented by my attorney of record.

 

LAURA PEKAREK, CODE ENFORCEMENT OFFICER AND DESGNIATED REPRESENTATIVE OF MARION COUNTY ACTIONS SUMMARIZED

 

      A few Issues summarized that as part of my law suit Marion County rep. and Code Enforcement Officer did the following:

 

Laura Pekarek, Code Enforcement Officer for Marion County Sheriff’s Office, Sheriff and or Deputies, came on the property un announced, to gather evidence of a crime without a warrant;

 

Laura Pekarek admitted in her deposition, she never read the Physicians Certificate until it was time for her deposition, illustrates her lack of property research;

 

Laura Pekarek claims she didn’t have any conversation about my care givers with family members in a year and a half of me suing her, Sheriff’s office and Marion County;

 

Laura Pekarek claims she didn’t know what my law suit against her was really about until it was time for her deposition;

 

Laura Pekarek didn’t review my county record where she would have learned about my plight;

 

Laura Pekarek didn’t know that my home had a conditional use hardship permit when she came on the property to collect evidence of solid waste violations;

 

Laura Pekarek didn’t make any attempt to contact me either in writing or on the phone, treating me as a tenant of a second dwelling she did not, nor did she notify my sister, the Executor and Administer of the Henion Trust representing the farm, nor it’s manager, my father, David C. Henion;

 

Laura Pekarek didn’t know anything about who were the executor and administrator of the farm until Judy was not contacted;

Laura Pekarek sent no letters to me regarding fines that would affect my residence as well;

 

Laura Pekarek didn’t investigate to see if care givers rather than renters were in my home in my absence in 2016 while I was undergoing treatment at the VA Medical Center, La Jolla, California.

 

Note: In 1998, Marion County thought my mother, Ada Anderson was living in the house in June 1998, while I was a way seeking medical treatment in Los Angeles, California. In fact, Angie and Rodney Larson were and they were my care givers, not renters, prior to issuing a $1,000.00 a day fine notification.

 

     At the time, once the county forced their evictions, Rodney Larson may not have been in keeping the house up like my father may have liked outside, but Angie, single and in no relationship, took care of the house and my morning care, like shower, bowl, breakfast, range of motion, etc., yet my absence was to be short, but once I lost two care givers, I went to Mexico with Jerry Butts from his uncles house where I was staying, to be close to a major hospital where I sought help.

 

      It reminds me of Mexico where anyone can charge you with a crime and the police come and arrest you, placing you in jail, often for three days for theft of a cell phone or other devices or appliances, gas, etc., but breaking into a house or stealing a car, from only one person making the charge, you must defend yourself from jail where you remain until you prove your innocence. So in 1998, from a phone call of one citizen, claiming renters were in my house, you don’t get an investigation prior to being threatened to be fined. Past discrimination issuing a thousand dollar day fine if two care givers didn’t leave my home in 1998, making it impossible to come home after surgery, so surgery was canceled, provides evidences of past policies, procedures and practices of forcing the eviction of care givers.

 

    Threats of suspending my conditional hardship permit unless care givers were evicted in 1998 and 2016 consist of Twenty years of discrimination, to include changing the 90 day rule of terminating the CUP dwelling to 60 days and to in the absence of tenant rather than when to disability ceases by violating at least two of three Marion County Ordinances and laws as well as State’s

 

Laura Pekarek does not have a greater understanding of the ADA, that trains Marion County Sheriff’s Department so they know how the ADA protects the severely disabled, so they may better serve us that are severely disabled as I once served 5 1/ years in the U.S. protecting Americans, Residents ad Guests from evil and rootless empires like Iran, during Operation Evening Light and Operation Eagle Claw, the attempt to free the hostages April 4, 1980 while I was serving as the Operations Department Yeoman, with collateral duties managing the OP ORDER for COMCARGRU THREE;

 

Marion Counties designated representative, the Sheriff’s Department Code Enforcement Officer, Laura Pekarek, lack of knowledge of MCC’s, ORS’s, OAR,  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. and ORS §§ 659A.142 (5)(a), 659A.145 (g) was clear during her deposition. Further lack of attention to the Department of Land Conservation and Development Farming and Forest reports that are issued on an annual basis that state “in exclusive farm use zones, dwellings are allowed in seven different circumstances: 

 

primary farm dwellings, accessory farm dwellings, relative farm help dwellings, nonfarm dwellings, lot of record dwellings, replacement dwellings, and temporary hardship dwellings” and 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).

 

BRUCE WAYNE HENION FIRST DECLARATION AND TESTIMONY IN SUPPORT OF LAW SUIT AGAINST MARION COUNTY IN NON COMPLIANCE WITH THE AMERICAN DISABILITY ACT - 3 June 2018 

 

MARION COUNTY HAS DISCRIMINATORY PRACTICES, POLICIES, PROCEDURES, CODES AND OR APPLICATIONS, OR BOTH AND OR THAT DENY CIVIL AND HUMAN RIGHTS

 

       Basically, Marion County believes it's appropriate, if your severe disability causes you to go after medical treatment that last longer than 90-days being away from your CUP Medical Hardship Dwelling, or 60-days, dependent which Code in different zoning areas; or if blood relation, family members or spouse can’t care for you anymore, either on the property in another residence or dwelling, than you must surrender your permit and remove your Dwelling within 60-days.

 

CANNOT HAVE NON RELATED CARE GIVERS

 

CANNOT HAVE LIVE IN CARE GIVERS

 

BLOOD RELATION, FAMILY MEMBERS OR SPOUSE CAN BE CARE GIVERS IN MY ZONE EXCLUSIVE FARM USE BUT MUST LIVE IN SEPARATE HOUSE ON THE FARM

 

I NEED 24/7 CARE AND HAVE HAD MY CUP MEDICAL HARDSHIP FOR MY HOUSE SINCE 1991

 

MARION COUNTY SPECIFICALLY MADE IT IMPOSSIBLE FOR ME TO COME HOME, STRANDED IN MEXICO WHEN THEY FORCED THE EVICTION OF MY CARE GIVERS WHILE I WAS IN A VA HOSPITAL UNDER GOING MEDICAL TREATMENT LONGER THAN 90 DAYS AND WANTED MY MOBILE HOME TAKEN OFF THE PROPERTY WITHIN 60 DAYS - ORS SAYS 90 DAYS AND AFTER THE DISABILITY CEASES, RENEWED ANNUALLY SINCE 1991.

 

     My third Law Suit Book concludes all information regarding my Law Suit and when the Judge at the District Court, Eugene, Oregon rules on:

 

Discriminatory Practices, Policies, Codes or Applications of Marion County

Conditional Use Medical Hardship for a dwelling in contrast to ORS’s, Title II of the ADA and § 504 of the Rehabilitation Act; 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.

 

       Will be published. This book begins the history of my law suit after a civil rights attorney took my case, that includes declarations and county representatives’ depositions, my briefs on those depositions, three complaints, Marion County Attorneys responses to those complaints, request of disclosures, documents disclosed to us by the county and their attorneys responses to said same and my briefs of depositions of Marion County representatives’ and letter of Summary Motion (6 June 2018).

 

       The author of this publication’s attorney, Melissa D. Wischerath, OSB # 130194, submitted PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 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.

 

      “The Defendant’s failure to consent to the Plaintiff’s request accommodation, and the Defendant’s threat to fine the Property if the Plaintiff’s care attendants did not vacate the manufactured home, directly infringed a benefit sought by the Plaintiff. It is a benefit to be able to participate in the County’s code compliance without being penalized. The Plaintiff was denied the benefit of having the opportunity to comply with the code without the Property being threatened with large daily fines and the Plaintiff himself threatened with the loss of his home. All of these are benefits of the Defendant’s services, policies and procedures that are readily available to non-disabled homeowners in a way that they were not available to the Plaintiff.

 

      Non-disabled homeowners do not qualify for Conditional Use Hardship Permits. Non-disabled homeowners do not need round-the-clock, live-in caregivers. Non-disabled homeowners are not required to be hospitalized due to their physical disabilities/conditions for possibly months at a time.

 

      The Plaintiff, because his disabilities requires round-the-clock, live-in care and at times must be absent from his home for lengthy medical treatment, asked the Defendant for a modification of their rules. The Defendant refused, and continues to refuse, to modify their rules to allow the Plaintiff access to this benefit enjoyed by other Conditional Use Hardship Permit holders who did not require the level of care—due exclusively to his disabilities—that the Plaintiff required. This blatant violation of the ADA and Section 504 has left the Plaintiff an exile in a foreign country, unable to return to his home and family.”

 

 

 

 

Law Suit against Marion County, Oregon

Part V of VII

 USS CORAL SEA (CV 43)