HomeMy WebLinkAbout20020433 SUMMONS IN A CIVIL ACTION
United States District Court
for the District of Colorado ,•
Civil Action Number: -,_0'2 K-00'8 T
PATRICIA STYSKAL ,
PLAINTIFF(S),
v. SUMMONS
THE WELD COUNTY BOARD OF COUNTY
COMMISSIONERS , ED JORDAN, SHERIFF,
in his official capacity, MIKE WITMAN,
JOHN KIELIAN, DALE BEVERLY, JOHN
AND JANE DOES 1- 20 , whose true names
are presently unknown,
DEFENDANT(S).
To the above named Defendant(): WELD COUNTY BOARD OF COUNTY COMMISSIONERS
You are hereby summoned and required to serve upon THE LAW OFFICES OF JOHN W. McKENDREE
plaintiffs attorney, whose address is: 1244 Grant Street
Denver, CO 80203
AND FILE WITH THE CLERK OF THE COURT
an answer to the complaint which is herewith served upon you, within 20 days of service of this summons upon you,
exclusive of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in
the complaint.
James R. nspeaker, Clerk
Depu Clerk
al of the Court)
Date: FEB. 8 2002
Clerk, U.S. District Court, C-145 U.S. Courthouse, Denver, Colorado 80294-3589
NOTE: This summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedure.
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2002-0433
u 5 T
IN THE UNITED STATES DISTRICT COURT Lc r E ,r,D
FOR THE DISTRICT OF COLORADO
r,
Civil Action No: 02 - - 0081 c Z
PATRICIA STYSKAL
Plaintiffs,
v.
THE WELD COUNTY BOARD OF COUNTY COMMISSIONERS, ED JORDAN,
SHERIFF, in his official capacity, MIKE WITMAN, JOHN KIELIAN, DALE
BEVERLY, JOHN AND JANE DOES 1-20, whose true names are presently
unknown,
Defendants.
VERIFIED COMPLAINT AND JURY DEMAND
COMES NOW the Plaintiff, by and through her attorneys, the LAW OFFICES
OF JOHN W. McKENDREE and alleges and avers as follows:
JURISDICTION AND VENUE
1. Plaintiff Styskal is a citizen of the United States and a resident of the state of
Colorado.
2. Defendant Weld County Board of County Commissioners is a governmental
entity within the State of Colorado and is organized pursuant to state law.
3. Defendant Sheriff Ed Jordan was at all times relevant the Sheriff of Weld
County and is sued in his official capacity.
4. Upon information and belief, Defendant John Kielian is a citizen of the
United States and a resident of Colorado.
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5. Upon information and belief, Defendant Dale Beverly is a citizen of the
United States and a resident of Colorado.
6. Upon information and belief, Defendant Mike Witman is a citizen of the
United States and a resident of Colorado.
7. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1344, and 42 U.S.C. §
1983, 2000e et seq. Plaintiff seeks to obtain the costs of suit, including
reasonable attorney fees under 42 U.S.C. § 1988.
8. Jurisdiction over Plaintiff's state law claims is proper pursuant to this Court's
supplemental jurisdiction under 28 U.S.C. §1367 because those claims are
substantially part of the same case and/or controversy.
9. Venue is proper pursuant to 28 U.S.C. § 1391, in the United States District
Court for the District of Colorado by virtue of the fact that the claims in the
above-captioned action arose in the State of Colorado. The United States
Constitutional violations alleged herein were committed in the State of
Colorado and all defendants reside in the State of Colorado.
GENERAL ALLEGATIONS
10. Plaintiff incorporates herein by reference each and every allegation
contained in Paragraphs 1-9 of this Verified Complaint and Jury Demand.
11. Plaintiff is an unmarried woman over the age of 40.
12.. On or about November 22, 1994, Plaintiff purchased property in Weld
County, Colorado, which included two residential buildings and a detached
garage.
13. Upon information and belief, prior to Plaintiff purchasing her property, the
previous owner used both the buildings as residences. While Plaintiff was the
owner of the property, Weld County determined that using both buildings as
residences violated their zoning ordinances.
14. Plaintiffs property is approximately one acre in size and is burdened by an
easement owned by Defendants Kielian, Beverly, and Witman. The easement
is for a ditch that is a private lateral that carries water from the Little
Thompson Beeline ditch through Plaintiff's property to a transfer box for
purposes of irrigating Defendant Beverly, Witman, and Kielian's property.
15. Upon information and belief, the scope of the ditch easement has been
unlawfully expanded by acts of Defendants Witman, Kielian and Beverly.
16. Upon information and belief, Defendant Witman wrongfully installed a
pipeline underneath Plaintiffs land, and outside the boundaries of the
easement without permission, in or about 1994. The pipeline buried
in 2000 was put in his easement under the ditch. Defendant has failed to
remove this pipelines thereby committing a continuing trespass.
17. Furthermore, Defendants Witman, Kielian, and Beverly wrongfully enlarged
the corner concrete water diversion located on the Southeast corner of
Plaintiffs property.
18. In or about 1998, Defendant Witman wrongfully removed a portion of
Plaintiffs fence without seeking or obtaining her permission.
19. Defendants Witman, Kielian, and Beverly have wrongfully parked and
operated heavy equipment in Plaintiffs driveway without seeking or
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obtaining Plaintiff's permission. The last such act occurred in or about the
year 2001.
20. Upon information and belief, Defendant Witman stated threatening words to
Plaintiff to the effect that, "you and Karen better be careful Pat, or your
properties may go up in smoke." Defendant Witman purposely and
wrongfully made this statement with the intention of causing Plaintiff to
suffer fear for the safety of herself and her property, and Plaintiff in fact
suffered such fear.
21. Approximately two days later, two large explosions went off in very close
proximity to Plaintiffs' property. Upon information and belief, Defendant
Witman set off those explosions which continued that week only during the
nighttime hours, terrifying Plaintiff.
22. Upon information and belief, Defendant Witman further stated to third parties
words to the effect that he would "do Pat Styskal in big time," or "get her
good." These statements occurred in or about summer 2000, and caused
Plaintiff to suffer fear for her personal safety, and that of her property.
23. Subsequently, Defendant Witman wrongfully told Plaintiff that she could not
use water from her own well, located on her own property.
24. During the year 2000, Defendants Beverly and Witman wrongfully destroyed
Plaintiff's property by spraying an unknown poisonous substance thereon,
burned her fence, and/or trespassed upon and destroyed her property with
front loaders and other heavy equipment.
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25. Several times during the month of April 2000, Defendants Witman and
Beverly trespassed upon, and bulldozed Plaintiff's property, destroying her
lawn and flower garden, and leaving large mounds of dirt piled on her
property. Plaintiff contacted the Weld County Sheriff's Department, Officer
Wagner, who stated the Sheriff's Department would not respond.
26. Defendant Witman continues to trespass upon Plaintiff's property, and has
trespassed on her property since approximately 1996. Defendants' acts of
trespass have and continue to cause damage to Plaintiffs property.
27. Upon information and belief, in or about October 2000, Defendant Witman
traversed over the area of Plaintiff's property where the water line was buried
with heavy equipment, without permission, causing Plaintiff's water pipe to
burst.
28. Plaintiff became fearful for her safety and decided to move out of her home.
Plaintiff purchased another home in Loveland, Colorado and leased her
Milliken property.
29. When Plaintiff resided in Loveland, in or about May 2000, Defendants
Witman and Beverly sprayed poison over Plaintiffs property, including
around a child's swing set, and around hay used to feed Plaintiff's tenant's
horses.
30. Further, on or about May 7, 2000 Defendant Beverly trespassed on Plaintiff s
property, and sprayed poison that killed plants on Plaintiffs property.
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31. On or about May 8, 2000, Defendant Witman trampled Plaintiff's tenant's
garden, and demanded that the garden be relocated. Upon information and
belief, when the tenant refused, Witman threatened to "get his tractor."
32. Because Plaintiff had received numerous reports from her tenants that
Defendants Beverly and Witman were damaging and/or destroying her
property, on or about May 2000, Plaintiff moved back to her property and
stayed in her recreational vehicle in an effort to stop these Defendants from
further damaging her property, and interfering with her tenant's use and
enjoyment of the property.
33. Upon information and belief, Defendant Weld County Sheriffs Department
failed to protect Plaintiff, thereby causing the harm to which Plaintiff was at
risk. When Sheriffs officers finally responded to Plaintiff's calls for help,
those officers reacted by telling Defendants Kiefian, Witman, and/or Beverly
they could do what they wanted on Plaintiffs property.
34. On or about May 24, 2000, Weld County officials told Plaintiff that several of
her neighbors complained that she was living in an RV, and that she could no
longer do so.
35. Plaintiff was again placed in the untenable position of either leaving her
property unprotected and subject to further destruction, or, terminating her
tenant's lease so that she would have a place to live. Plaintiff decided to
terminate the lease with her tenants.
36. On or about May 26, 2000, Defendant Witman trespassed on Plaintiffs
property with heavy equipment.
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37. In or about June 2000, Plaintiff contacted Weld County authorities to report
that Defendant Witman was residing in an RV located inside a large metal
building he constructed. Upon information and belief, Plaintiff's report was
not investigated.
38. On or about August 8, 2000, a meeting was held in the Weld county
commissioners' hearing room wherein Plaintiff was found in violation of -
Weld County building codes and was wrongfully ordered to render the
smaller of the two structures uninhabitable, by October 8, 2000.
39. Plaintiff was placed in the untenable position of either not complying with
that order and be sanctioned by the Weld County, or, comply with the order
and destroy her own property. Plaintiff chose the latter.
40. Plaintiff attempted to repair the broken water pipe, but her property was so
inundated with water due to certain acts by Defendant Kielian, Beverly,
and/or Witman, that the repair work could not proceed until the land dried out.
Consequently, Plaintiff was forced to pay for two repair calls.
41. On or about September 11, 2001, Plaintiff observed that the portion of her
fence, located on her property between her's and Defendant Witman's
property had been electrified without permission. Plaintiff sent a demand
letter to Witman to immediately remove the electrification, however, that
request was and continues to be ignored.
42. During the summer of 2001, Defendants Witman and Beverly gathered in
front of Plaintiffs property, laughing and jeering at her when she left her
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home. By so acting, Defendants purposely intended to threaten Plaintiff, and
Plaintiff in fact felt threatened.
43. On or about May 3, 2001, Plaintiff was in her front yard picking up her mail
when Defendants Kielian and Witman drove by. Upon information and
belief, Kielian and Witman backed their vehicle up, stopped in front of
Plaintiffs property and glared at Plaintiff in a threatening manner. By so
acting, Defendants purposely intended to threaten Plaintiff, and Plaintiff in
fact felt threatened.
44. Throughout the time that Plaintiff has resided on her property, Defendant
Beverly, Defendant Kielian, and/or Defendant Witman negligently caused
flooding on Plaintiffs property by failing to use reasonable care. Further,
Defendant Witman either negligently or willfully flooded Plaintiffs property
on at least three different occasions, causing damage thereto.
45. In or about 1999 and 2001, Plaintiff placed her property on the market,
however, because Defendants Witman and Beverly left huge piles of dirt, the
value of Defendant's property decreased and she eventually was forced to
remove it from the market.
46. On or about October 2001, Weld County officials wrongfully informed
Plaintiff that she must completely revamp a bathroom in the structure in
which Plaintiff was forced to render uninhabitable.
FIRST CLAIM FOR RELIEF
(Against Defendant Weld County Board of Commissioners)
Violation of the Equal Protection Clause Fifth Amendment to the U.S.
Constitution, As Incorporated by the Fourteenth Amendment of the U.S.
Constitution
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47. Plaintiff incorporates herein by reference paragraphs 1-46 of this Verified
Complaint and Jury Demand.
48. Upon information and belief, Defendant Weld County has a policy, practice
or custom wherein single women are treated disparately and less favorably
than similarly situated men in the County with regard to enforcement and/or
enactment of zoning ordinances.
49. As a direct and proximate result, Plaintiff suffered, and continues to suffer
extreme emotional injury, physical injury, severe pain and suffering, severe
emotional and mental distress, psychological damage, loss of enjoyment of
life, and other nonpecuniary damages. Plaintiff also suffered and continues to
suffer pecuniary losses, including but not limited to medical expenses,
attorneys fees and costs.
SECOND CLAIM FOR RELIEF
(Against Defendant Sheriff Jordan)
Failure to Protect in Violation of the Fourteenth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983
50. Plaintiff incorporates herein by reference paragraphs 1-49 of this Verified
Complaint and Jury Demand.
51. Upon information and belief, Defendants have a policy, practice and/or
custom in place of disregarding Plaintiffs calls for help, and disregarded the
risk of which Plaintiff complained, and that risk was realized.
52. As a direct and proximate result, Plaintiff suffered, and continues to suffer
extreme emotional injury, physical injury, severe pain and suffering, severe
emotional and mental distress, psychological damage, loss of enjoyment of
life, and other nonpecuniary damages. Plaintiff also suffered and continues to
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suffer pecuniary losses, including but not limited to medical expenses,
attorneys fees and costs.
THIRD CLAIM FOR RELIEF
(Against Defendant Weld County Board of Commissioners)
Taking in Violation of the Fifth Amendment of the U.S. Constitution as
Incorporated by the Fourteenth Amendment of the U.S. Constitution
53. Plaintiff incorporates herein by reference paragraphs 1-52 of this Verified
Complaint and Jury Demand.
54. Upon information and belief, Defendant has a policy, practice and/or custom
in place wherein Plaintiff was deprived her U.S. Constitutional Fifth
Amendment right to be free from deprivation of property without due process
of law.
55. Upon information and belief, the use of the two buildings on Plaintiff's
property was for residential purposes prior to the enactment of the Weld
County Zoning Ordinance at issue. Therefore, Plaintiffs right to use her
buildings as residential structures may continue as a non-conforming use. See
Town of Lyons v. Bashor, 867 P.2d 159 (Colo. Ct. App. 1993).
56. Because Defendant ordered Plaintiff to destroy her own property or face
sanctions, they have violated her rights protected by the Fifth Amendment of
the U.S. Constitution.
57. As a direct and proximate result, Plaintiff suffered, and continues to suffer
extreme emotional injury, physical injury, severe pain and suffering, severe
emotional and mental distress, psychological damage, loss of enjoyment of
life, and other nonpecuniary damages. Plaintiff also suffered and continues to
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suffer pecuniary losses, including but not limited to medical expenses,
attorneys fees and costs.
FOURTH CLAIM FOR RELIEF
(Against Defendants Beverly, Witman, and Kielian)
Trespass
58. Plaintiff incorporates herein by reference paragraphs 1-57 of this Verified
Complaint and Jury Demand.
59. Defendants have intentionally entered the land possessed by Plaintiff without
her permission, and have caused things to enter the surface and underground
area of Plaintiff's land without her permission.
60. As a direct and proximate result, Plaintiff suffered, and continues to suffer
extreme emotional injury, physical injury, severe pain and suffering, severe
emotional and mental distress, psychological damage, loss of enjoyment of
life, loss and/or diminution of the value of her property due to Defendant's
acts, and other nonpecuniary damages. Plaintiff also suffered and continues
to suffer pecuniary losses, including but not limited to medical expenses,
attorneys fees and costs.
FIFTH CLAIM FOR RELIEF
(Against Defendants Kielian, Beverly, and Witman)
Negligence
61. Plaintiff incorporates herein by reference paragraphs 1-60 of this Verified
Complaint and Jury Demand.
62. Defendants have sprayed poison and used heavy machinery on Plaintiff's
land.
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63. Defendants are required to exercise the utmost care in their use of poisons and
heavy machinery because those products and devises have the potential for
causing extreme harm.
64. Defendants breached their duty of care by killing Plaintiffs plants and
otherwise damaging Plaintiffs property. Any physical harm done to Plaintiff
is yet undetermined.
65. Defendants have caused extreme harm to Plaintiff's land and person, the full
extent of which may not be realized for many years.
66. Defendants are joint tortfeasors, and are thus jointly and severally liable to
Plaintiff.
WHEREFORE, Plaintiff prays that this Honorable Court enter judgment in
her favor and against Defendants as follows:
(a) On her First Claim for Relief, damages, in an amount to be determined
at trial;
(b) On her Second Claim for Relief, damages, in an amount to be
determined at trial;
(c) On her Third Claim for Relief, Just Compensation, in an amount to be
determined at trial;
(d) On her Fourth Claim for Relief, actual damages, in an amount to be
determined at trial;
(e) On her Fifth Claim for Relief, damages,jointly and severally from
Defendants in an amount to be determined at trial.
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(I) Plaintiff is not claiming exemplary or punitive damages from any
governmental defendants;
(g) reasonable costs and attorneys fees; and
(h) such other and further relief as this Honorable Court may find just and
proper.
JURY DEMAND
Plaintiff demands a trial by jury on all issues s. triable.
Dated: /., I�l� - >s .
T P AW O FICES OF JOHN W. McKENDREE
John W. McKendree, #1209
Elizabeth Kelly, #24688
Denver, CO 80203
303-861-8906
303-861-7773 (fax)
Attorneys for Plaintiff
Plaintiff's Address:
23015 WCR 21 %
Milliken, CO 80543
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VERIFICATION
State of Colorado
� � ss.
County of Pe/y ) )
I hereby certify that I have read the foregoing Verified Complaint and Jury
Demand and it is true and correct to the best of my knowledge, information and
belief.
kal �S
Patricia Styskal
Subscribed and Sworn before me this J rday o2001 by Patricia Styskal.
�PG GE'R124.9
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