ed
1 2 3
Kini Cosma P.O. Box 7918 Klamath Falls, OR 97602 (541) 880-4534 In Properia Persona
4 5
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Medford Division
6 7 8
15
) Case No.: 1:14-cv-00438-PA ) Plaintiff, ) ) vs. ) ) PLAINTIFFS’ MOTION FOR PARTIAL LINDA THOMAS aka LINDA PARKER aka ) SUMMARY JUDGMENT THOMAS, KLAMATH COUNTY SHERIFF ) ET AL, CHARLES RADDICK dba M C ) TOWING, DOES 1 through 100, inclusive. ) ) Defendant(s) )
16
(1)
9 10 11 12 13 14
17 18 19
Kini Cosma,
Pursuant to Federal Rule of Civil Procedure 56 and this Court’s Local Rule 7,
Plaintiff Kini Cosma, respectfully moves this Court for entry of an Order granting summary judgment in her favor. Specifically, Plaintiff moves for summary judgment on
20
her claim that Defendants, Klamath County Sheriff Doe 1 violated her rights under the
21
Fourth Amendment per 42 U.S.C. §1983 and that Charles Raddick of M and C Towing
22
conspired with Klamath County Sheriff Doe 1.
23 24 25
(2)
In support of this Motion, Plaintiff is filing a Memorandum of Points and
Authorities and Statement of Undisputed Material Facts, along with one Declaration.
26
(3)
For the reasons provided in the supporting Memorandum, Plaintiff contends that
27
there are no genuine disputed issue as to any material fact and that she is entitled to
28 Page 1 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
judgment as a matter of law on her claim. Plaintiff respectfully prays that this Court grant
2
summary judgment in her favor, declaring that 42 U.S.C. §1983 as applied to her
3
violated her constitutional rights .
4 5
(4)
Standard of Review
6
(5)
7
party's case that they had probable cause to seize and tow Plaintiff's vehicle. Summary
8
judgment is appropriate where, construing all evidence in the light most favorable to the
9 10 11 12
Plaintiff demonstrates that there is a lack of evidence to support the nonmoving
non-moving party, the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1 2 3
Kini Cosma P.O. Box 7918 Klamath Falls, OR 97602 (541) 880-4534 In Properia Persona
4 5
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Medford Division
6 7 8
15
) ) Plaintiff, ) ) vs. ) ) LINDA THOMAS aka LINDA PARKER aka ) THOMAS, KLAMATH COUNTY SHERIFF ) ET AL, CHARLES RADDICK dba M C ) TOWING, DOES 1 through 100, inclusive. ) ) Defendant(s) )
16
(1)
9 10 11 12 13 14
17 18 19
Kini Cosma,
(2)
Case No.: 1:14-cv-00438-PA
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
STATEMENT OF UNDISPUTED MATERIAL FACTS Plaintiff claims the impoundment of her vehicle by Klamath County Sheriff Doe 1
was unreasonable, was unauthorized by a statue and, under the circumstances, was
20
unnecessary, therefore, a violation of the Fourth Amendment.
21
(3)
22
an unreasonable violation of a clearly established right and that Defendants seemed to
23 24 25
Plaintiff’s allegations involve a random and unauthorized deprivation of property,
willfully ignore this for the purpose and flagrancy of the official misconduct. (4)
On February 1, 2014, a Saturday, Plaintiff went to purchase some essential basic
26
necessities, stopping at the Grocery Outlet store (4333 S 6th St, Klamath Falls, OR)
27
(EXIBIT A) before going to feed her livestock. As she was departing the parking lot in
28 Page 3 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
her vehicle (a 1987 Dodge 250 Ram Van), she noticed smoke rising up from under the
2
right side of the hood. Plaintiff immediately parked her van at the other end of the outlet
3
store, in a parking space, on the private property of the mall lot, and in front of her
4 5
church where she is a regular visitor on Sundays (EXHIBIT B), and phoned 911 to
6
request help from the Klamath County Fire Department 1 to extinguish the small engine
7
fire. Any traffic flowing through that area was mild and there were numerous access
8
driveways for the public to enter and exit. The owner of the parking lot neither posted
9 10 11
signs regarding towing or prohibited parking. (5)
The fire was exterminated in less than a hour. The vehicle was registered and
12
insured and Plaintiff had a valid driver's license and was present to make other
13
arrangements.
14 15 16
(6)
By the time the fire was put out by the Klamath County Fire Department, Klamath
County Sheriff Doe 1 arrived to question Plaintiff's identity. The deputy stood within the
17
immediate vicinity of Plaintiff while she attempted to move about to assess the damages
18
of the vehicle and the contents thereof. His consistent behavior was in such a way as to
19
communicate that he did not recognize Plaintiff's authority over the vehicle and its
20
contents and he chose not to give her the opportunity to exercise that authority in order
21 22
that they could seize her vehicle.
23
(7)
24
exert dominion over the vehicle, nor free to remove it from the premises while effectively
25
seizing it by phoning Raddick of M and C Towing to remove the vehicle and all its
26 27 28
It was, at that moment, reasonable for Plaintiff to believe that she was not free to
contents. 1 Approximately two blocks away from the incident
Page 4 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
(8)
2
leave it in Plaintiff's possession, or parked legally in the lot until a tow company
3
The deputies' decision to have the car towed and later searched rather than
authorized by Progressive came to retrieve it, violated Plaintiff's right to be free from
4 5
unreasonable search and seizure.
6
(9)
7
moved from the lot to an arguably safer location. His knowledge of her authority as a
8
custodian for the car and its contents was demonstrated by the fact that Plaintiff's
9 10 11
The deputy had no obligation to seek out an alternate means for having the car
towing insurer, Progressive, who was entrusted to pay for the towing service — and by the deputy with delivering property of the car's owner, who would take immediate
12
responsibility.
13
(10)
14 15 16
Plaintiff contends that there was no probable cause that the vehicle was an
instrumentality of a crime; that the vehicle was unlawfully parked with no one to move it; that the vehicle was a traffic hazard with no one to move it; that Plaintiff was arrested or
17
evacuated, or that the vehicle need to be moved from a bad area for safekeeping.
18
(11)
19
minimal intrusion involved in an on-the-scene inspection of the VIN or CVIN, the greater
20
While circumstances amounting to less than probable cause may justify the
intrusion involved in impounding or seizing a vehicle cannot be justified without probable
21 22
cause. See Bourgeois v. Peters, 387 F.3d 1303 (2004) citing Courts that have
23
repeatedly emphasized, "[T]he most basic constitutional rule in this area is that
24
`searches conducted outside the judicial process, without prior approval by judge or
25
magistrate, are per se unreasonable under the Fourth Amendment — subject only to a
26 27 28
few specially established and well-delineated exceptions,'" Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (quoting Katz v. Page 5 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)), which are
2
"jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499, 78 S.Ct.
3
1253, 1257, 2 L.Ed.2d 1514 (1958); accord Schneckloth v. Bustamonte, 412 U.S. 218,
4 5
219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Swint v. City of Wadley, 51 F.3d 988,
6
995 (11th Cir.1995). Similarly, "[i]n enforcing the Fourth Amendment's prohibition against
7
unreasonable searches and seizures, the Court has insisted upon probable cause as a
8
minimum requirement for a reasonable search permitted by the Constitution." Chambers
9 10 11
v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419 (1970). "A search or seizure is ordinarily unreasonable in the absence of [at least some] individualized
12
suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct.
13
447, 451, 148 L.Ed.2d 333 (2000).
14 15 16
(12)
Defendants had received a claim from Plaintiff for the negligent and intentional
deprivation of Plaintiff's property, the deprivation was random and unauthorized and
17
state law provides a meaningful post-deprivation remedy. See Parratt v. Taylor, 451 U.S.
18
25 527, 535-44 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S.
19
327, 26 330-31 (1986). See also Hudson v. Palmer, 468 U.S. 517, 533 (1984). A
20
deprivation of property is “random and unauthorized” if contrary to law or established
21 22
procedure. See, e.g., King v. Massarweh, 782 F.2d 825, 826-27 (9th Cir. 1986).
23
(13)
24
Defendants vigorously asserted their prerogatives did nothing but invite mischief and
25
make the inherently difficult job of Plaintiff more difficult still. The vehicle was towed by
26 27
At pains of being held to have abandoned Plaintiff's constitutional rights —
a private company under contract to the city. And, they failed to make a provision for a
28 Page 6 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
prompt review of an impound at the request of the Plaintiff who was the owner and
2
operator.
3
(14)
The problems of both error and deliberate misconduct by law enforcement
4 5
officials call for a workable remedy and Defendant's insurer provides an adequate
6
remedy for such deprivations, however, the availability of this adequate post-deprivation
7
remedy—e.g., a state tort action—precluded constitutional relief. No adjustments were
8
made when warranted by the particular facts.
9 10 11
(15)
(16)
DEFENDANT'S COMMUNITY CARETAKING FUNCTIONS SERVED TO INVADE PLAINTIFF'S PRIVACY The evidence established not only that the police officers failed to suggest to
12 13
Plaintiff that she should take a sobriety test for being intoxicated in public, the decision
14
to tow and search was unmoored from any justifications securing the community
15
caretaking function of the police. At best, there was a liquor store in the shopping mall.
16
At most, there were several alcoholic beverages in Plaintiff's vehicle that she just bought
17 18 19
while shopping on sale at the Grocery Outlet store. See EXHIBIT A (alibi receipts of propane purchase and Grocery Outlet store proving that Plaintiff was not intoxicated).
20
(17)
21
warrantless investigative initiative in violation of Plaintiff's Fourth Amendment, to blame
22 23 24 25
The inventory search justification was nothing more than a pretext for a
her of alcohol related offenses; the knowing and voluntary consumption of alcohol, et al. as a reason to continue an “investigation” for a mere suspicion to provide Klamath County a defense after she sent a FORMAL NOTICE OF CLAIM, Damages, Loss of
26
Personal Property, Economic Loss Costs, Emergency Demand To Recover
27
Damages and Costs. (EXHIBIT C)
28 Page 7 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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1
(18)
2
officer has probable cause to believe the driver has committed one or more of the
3
ORS 809.720 authorizes police officers to order vehicles impounded when the
following offenses:
4 5 6 7 8 9
a. Driving while suspended or revoked b. Driving under the influence c. Operating without driving privileges or in violation of license restriction d. Driving uninsured. (19)
Plaintiff did not smell of intoxicating beverages, and she was not staggering
10
around. She did not have a suspended driver's license. She was not an uninsured driver
11
involved in a disproportionally high number of accidents. It would appear, therefore, that
12
because the impoundment of Plaintiff's vehicle was unauthorized by statute, it was
13 14 15
unlawful. (20)
The County of Klamath have, themselves, cited Miranda v City of Cornelius, 429
16
F3d 858 (9th Cir. 2005); that because the impoundment of the Mirandas' car was
17
authorized by statute, it was unnecessary under the circumstances; That in Plaintiff's
18 19 20
case at issue here, there must be reason to believe that impoundment served some legitimate purpose; to claim that there is an unusual situation involving "special
21
circumstances" in which there was an absolute community caretaking justification for
22
the impoundment; And, that the sole purpose of punishing Plaintiff was to conduct an
23
inventory search without a warrant or probable cause because the impounding was
24
lawful.
25 26
(21)
United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir. 2005) discusses the
27
purpose of an inventory search for the protection of (1) the owner's property while in
28
police custody, (2) the police against claims or disputes over lost or stolen property, and Page 8 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
(3) the police from potential danger. And, in South Dakota v. Opperman, 428 U.S. 364,
2
369, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). "The central question in evaluating the
3
propriety of an inventory search is whether, in the totality of the circumstances, the
4 5
search was reasonable." Kennedy, 427 F.3d at 1143 (citing United States v. Rankin, 261
6
F.3d 735, 740 (8th Cir. 2001)). However, an inventory search must not be a ruse for
7
general rummaging in order to locate incriminating evidence. Florida v. Wells, 495 U.S.
8
1, 3 (1990)
9 10 11
(22)
It is undisputed that no warrants were obtained for the seizure at issue here
either but may be based on various other theories, namely, that the only reasonable
12
conclusion is that Defendants assumed their “community caretaking” duties to protect
13
Plaintiff, “who as a result of mental disease or defect 2 at the time of engaging in criminal
14 15 16
conduct, lacks substantial capacity either to appreciate the criminality of her conduct or to conform the conduct to the requirements of law”.
17
(23)
18
evidence would provide a reasonable basis for a finding that a continuing course of
19
criminal conduct was probable3; That according to Or. Rev. Stat § 426.005(1)(d), Plaintiff
20
Klamath County Sheriff Doe 1 and Raddick manacled Plaintiff so that the
is a "Mentally ill person," who, because of a mental disorder, is: (A) Dangerous to self or
21 22
others. And, (C)(iv) Unless treated, will continue, to a reasonable medical probability, to
23
physically or mentally deteriorate... However, even here, Plaintiff concedes there was no
24
"protective custody" exception to the warrant requirement. It would appear, therefore,
25
2 ORS §161.295
26 27 28
3 See CASE NO.: 09:1352; 11-464CR; OR Supreme Ct.: S058661; Ct. of App.: A145734; OR Fed Dist Ct: 10CV3062 where Kini Cosma languished in a mental institution in Salem for three months over a superficial dog bite. Public Defender Eve Oldenkamp refused to use Court evidence proving to a jury that Cosma did everything possible to stop dog from becoming vicious and Klamath County Sheriff refused to stop neighbor hooligans from menacing Cosma's animals.
Page 9 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
that because the impoundment of Plaintiff's vehicle was unauthorized by this statute, it
2
was unlawful.
3
(24)
The inventory in Plaintiff's vehicle contained dirty laundry. This evidence may
4 5
prove the following; The personal activities of toileting, such as undoing clothing and
6
personal hygiene, soiled underwear, incontinence, yeast infections or urinary tract
7
infections, failure to get to the toilet in time, sometimes due to mobility problems caused
8
by other conditions such as arthritis, encopresis, bowel movement problems, and other
9 10 11
medical conditions secured under medical privileges; Not making any attempt to find the toilet – this could be due to lack of motivation or depression, or embarrassment after an
12
accident, which the person unsuccessfully tries to deal with, wet or soiled clothes or
13
feces may be put out of sight (for example, wrapped up and put at the back of a drawer
14 15 16
to be dealt with later, but then forgotten), whether she wears diapers for incontinence, stress incontinence caused by weakness of the pelvic floor muscles due to childbirth or
17
aging, what kinds of bras and underwear Plaintiff wears torn, stained, or bloody
18
underwear, excretion/vaginal fluid that can reveal sexually transmitted diseases and her
19
legal notes and papers.
20
(25)
Plaintiff contends that, although, the Federal Rules of Evidence do not recognize
21 22
doctor–patient privilege, that the personal interests protected by the Fourth Amendment
23
are those we attempt to capture by the notion of "privacy"; The person should have
24
privacy in the toilet, it is very hard to accept that they need help from someone else in
25
such an intimate area of their life. Hygiene is a very personal issue that reveals a lot
26 27
about a persons health. The color, density, and smell of urine can reveal much about the
28 Page 10 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
state of Plaintiff's health. Here, for starters, are some of the things you can tell from the
2
hue of your liquid excreta. (EXHIBIT D)
3
(26)
This particularly abusive police practice becomes "unreasonable" only if enough
4 5
officers imitate the abuse. And, they have. This is the third farm device Klamath County
6
Sheriff has confiscated. In light of Plaintiff's historical allegations of police misconduct
7
and legal abuse, her subjective expectation is a serious recurring threat to her privacy
8
and was inherent in her account of it as embarrassing, frightening, and humiliating and
9 10 11
was reasonably related in scope to the circumstances which justified the interference in the first place.
12
(27)
13
of her vehicle as a pretext for conducting an investigative search that includes a claim
14 15 16
Defendants failed to prevent the threat to Plaintiff's privacy caused by the seizure
under 42 U.S.C. sec 1983 alleging that the search violated her privacy. Plaintiff properly points out that the type of harm which officials can inflict when they invade protected
17
zones of an individual's life are different from the types of harm private citizens inflict on
18
one another; that at the officer's discretion in such a way that non-investigatory
19
“community caretaking” functions are furthered.
20
(28)
The Fourth Amendment to the United States Constitution prohibits unreasonable
21 22
searches and seizures. Warrantless searches are presumed to be unreasonable and
23
therefore violative of the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900
24
P.2d 196, 198 (1995). The State may overcome this presumption by demonstrating that
25
a warrantless search either fell within a well-recognized exception to the warrant
26 27 28
requirement or was otherwise reasonable under the circumstances. Id. Ultimately, the standard set forth in the Fourth Amendment is reasonableness. Cady v. Dombrowski, Page 11 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
413 U.S. 433, 439 (1973); State v. Weaver, 127 Idaho 288, 900 P.2d 196 (1995) stated
2
an impoundment will be found to comply with Fourth Amendment standards only if it
3
was “reasonable under all the circumstances known to the police when the decision to
4 5
impound was made.” Id. at p. 291; 900 P.2d at p. 199.
6
(29)
7
impoundment of a defendant’s car was unreasonable. They held that the State
8
presented no justification for the officers’ decision to impound the automobile: Foster’s
9 10 11
In State v. Foster, 127 Idaho at 727, 905 P.2d at 1036, this Court held that the
car was parked off the street on a private driveway at a duplex rented by an acquaintance of Foster. It was not illegally parked or interfering with traffic. There was
12
no evidence that the duplex tenant or owner objected to the vehicle’s remaining
13
temporarily on the driveway. The police had no reason to believe the vehicle was stolen
14 15 16
or abandoned or that it was at risk of theft or damage. Id. at p. 727, 905 P.2d at p.1036. (30)
Since the State failed to meet its burden to show that the decision to impound
17
was reasonable, this Court held that the district court erred in holding that the search fell
18
within the inventory exception of the Fourth Amendment. Id. at 727-28, 905 P.2d at
19
1036-37. In Weaver, the Idaho Supreme Court held that a Kootenai County deputy’s
20
decision to impound the vehicle was not reasonable because the officer failed to make
21 22
inquiries and discover readily ascertainable information before deciding to impound the
23
vehicle. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). At the scene, the
24
officer concluded that the vehicle’s location presented a traffic hazard and that
25
impoundment was necessary. However, by the officer’s own testimony, information was
26 27 28
readily available to him that Weaver’s mother was the owner of the vehicle, that she had a valid driver’s license, and that she stated that she was able to drive the car. Id. at 289Page 12 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
90, 900 P.2d at 197-98. The Court held that “a person of reasonable caution would not
2
be warranted in the belief that a decision to impound the vehicle was appropriate
3
without first attempting to discover the readily ascertainable, pertinent facts.” Id. at 292,
4 5
900 P.2d at 200. Thus, in Weaver, the Court determined that, based on readily
6
ascertainable facts, the officer had no reason to believe that the vehicle could not be
7
legally removed by its owner.
8
(31)
9 10 11
including the following: •
12 13
•
14 15 16
•
17 18 19
Other less recent, but still instructive, cases have reached similar conclusions,
(32)
United States v. Duguay, 93 F3d 346 (7 th Cir., 1996). Impoundment based soley on arrestee's status as driver, owner, or passenger, without regard to whether any traffic congestion, parking violation, or road hazard exists or could be readily eliminated “is irrational and inconsistent with 'caretaking' functions.” United States v Pappas, 735 F2d 1232 (10 th Cir 1984) Impoundment was unconstitutional where defendant's car was legally parked on private property and defendant had friends with him who may have been able to take custody of the car. United States v Squires, 456 F2d 967 (2nd Cir 1972) Impoundment not justified where car was parked in parking lot behind apartment house in which arrestee lived, “which was an appropriate place for it to be,” and police officers had no reasonable basis for concluding it was necessary to impound the car to protect it. The narrative shows that Klamath County Sheriff Doe 1 immediately shifted into a
20
punitive mode, demanding that Plaintiff surrender her vehicle to them for no discernible
21
reason. Their theory fails; “giving these drivers another ticket does not make the point;
22
taking their vehicle away does.”
23
(33)
Having concluded that Plaintiff's complaint states a cause of action under the
24 25
Fourth Amendment, Plaintiff is entitled to recover money damages for any injuries she
26
has suffered as a result of the sheriffs' violation of the Amendment (EXHIBIT C). She
27
has suffered great humiliation, embarrassment, and mental suffering as a result of the
28 Page 13 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1
continuing unlawful conduct by Defendants. Plaintiff requests $15,000 damages from
2
each of them.
3
(34)
PRAYER FOR RELIEF
4 5
(35)
6
obtained this forced labor of Plaintiff by means of force, threats of force, physical
7 8 9 10
As a result of the above stated conduct by all Defendants who knowingly
restraint, or threats of physical restraint; by means of serious harm and threats of serious harm to her by abuse and threatened abuse of law and legal process 4; and by means of their schemes and patterns intended to cause Plaintiff to believe that, if
11
Plaintiff did not perform such labor, that Plaintiff would continue to suffer serious harm 5
12
and physical restraint.
13 14 15
(36)
That Defendants knowingly benefited, financially and by receiving property of
value from participating in a venture which has engaged in the providing or obtaining of
16
labor by any of the means described; knowing or in reckless disregard of the fact that
17
the venture has engaged in the providing or obtaining of labor or services are liable
18
under 18 USC § 1589.
19 20 21 22
(37)
That If these are honest mistakes, they should be treated in the same way as
deliberate and flagrant Irvine-type violations of the Fourth Amendment providing some meaningful and effective remedy against unlawful conduct by government officials.
23 24 25 26 27 28
4 The term “abuse or threatened abuse of law or legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action. 5 The term “serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Page 14 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1 2 3
WHEREFORE, Plaintiff respectfully asks this court to: a.
declare that the actions of Defendants violated the U.S. Constitution;
b.
determine that Defendants are therefore liable for the acts of each other
4 5
both corporately and individually for compensatory damages in an amount to be
6
determined by a jury at trial, together with interest thereon, plus special, consequential,
7
and incidental damages, costs, and reasonable attorneys' fees pursuant to
8
Federal/Oregon law;
9 10 11
c.
provide redress pursuant to 42 U.S.C. §§1983,1988 or other proper
proceeding with respect to the acts or steps taken by each of Defendants in connection
12
with the events described or referred to herein, acted as the agent of the other pursuant
13
to a common goal or scheme to carry out the wrongful patterns of conduct alleged
14 15 16
herein in order to deprive Plaintiff of her property and cause her economic collapse. d.
award such damages as willfully to compensate Plaintiff for her economic
17
loss, inconvenience, physical, mental and emotional distress and loss of important
18
business opportunities, and any other damages to which Plaintiff is legally entitled;
19 20
e.
award Plaintiff a maximum civil penalty of $11,000 for each discriminatory
practice found against Defendants; and, for punitive damages sufficient to punish and
21 22
deter Defendants against the pattern of abusive police techniques and practices for
23
seizing and depriving Plaintiff of her farm devices and vehicles and personal and
24
business effects; Should she prove any substantive claim at trial, she might also be able
25
to prove “oppression, fraud, or malice, express or implied,” which would allow him to
26 27
recover punitive damages in addition to compensatory damages. See 20 G.C.A. § 2120
28 Page 15 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
f.
1 2 3
award Plaintiff such additional relief as may be appropriate under the All
Writs Act of 28 USC 1651; S.47, the Violence Against Women Act of 2013; actual time spent litigating this case under the Fair Labor Standards Act, and The Civil Rights Act of
4 5
1871.
6
g.
award any other damages to which Plaintiff is legally entitled.
7
f.
arbitrate or cause to arbitrate a Settlement Relief of three times the Actual
8
Damages incurred under U.S.C. 42 §§1983,1988
9 10 11 12
Signed: Printed:
Respectfully submitted, Dated: Kini Cosma, Plaintiff P.O. Box 7918 541-880-4534 Klamath Falls, OR 97602 email:
[email protected]
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
ed
1 2
EXHIBIT A receipts showing alibi
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 17 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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1
EXHIBIT B
2 3 4 5 6 7 8 9 10 11 12 13
CLOSE UP OF EXHIBIT B
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 18 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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1 2 3 4
EXHIBIT C Kini Cosma P.O. Box 7918 Klamath Falls, OR 97602 (541) 880-4534 In Properia Persona
5 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION
6 7 8
17
) ) Plaintiff, ) ) vs. ) ) LINDA THOMAS aka LINDA PARKER aka ) THOMAS, KLAMATH COUNTY SHERIFF ) ET AL, PROGRESSIVE AUTO ) INSURANCE aka, dba, PROGRESSIVE ) DIRECT®, CHARLES RADDICK dba M C ) TOWING, DOES 1 through 100, inclusive. ) ) Defendant(s) )
18
(1)
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homeowner at 5262 Watson Drive in Klamath Falls, Oregon. Parker is being sued in her
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20
Kini Cosma,
Case No.: Emergency Demand To Recover Damages and Costs THIS IS A FORMAL NOTICE OF CLAIM PURSUANT TO ORS 30.275(1) THAT IF THIS CASE IS NOT RESOLVED WITHIN THE MONTH OF FEBRUARY 2014, PLAINTIFF INTENDS TO PURSUE IMMEDIATE LEGAL ACTION
Defendant, Linda Parker aka Linda Thomas (“Parker”) is a residential
individual capacity.
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(2)
Defendant, Doe 1 was, at all relevant times herein, a deputy officer at Klamath
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County Sheriff Department, an agency of Klamath County, Oregon. Defendant
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Klamath County Sheriff Doe 1 is a law enforcement officer for purposes of the Torts
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Claims Act (TCA) with it's principal place of business at Klamath County Sheriff, 3300
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Vandenberg Road - Klamath Falls, OR 97603.
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[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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To:
Klamath County Commissioners and c/o Frank Skrah, Charles Raddick dba M C Towing, Progressive, Linda Thomas aka Linda Parker, From: The Offices of Kini Cosma, Director of Equestian Travel Mall and Legal Services Date: February 7, 2014 Re: Claim of damages, loss of personal property, economic loss Here is an estimate of damages, loss of personal and business property, economic loss starting since January 1, 2014. I can be contacted at 541-880-4534 for immediate payment. I expect a resolution by the end of February 2014 or I will file this in the appropriate Court. Thanx for your immediate attention to this matter. Kini Damages, Loss of Personal Property, Economic Loss
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Two saddles, saddle blankets and other tack
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Water containers, laundry containers, misc containers
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Auto jack described as full 90 deg pumping ARC, replaceable power unit, heavy gauge steel frame, large wide track front wheels, heavy duty rear swivel casters, 47" handle
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Misc automotive tools
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Horseshoeing and trimming equipment and chaps
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Two residential trailer propane tanks Propane fill-up
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Costs $800.00 50.00 139.00
50.00 800.00 59.94 25.85 435.00
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Swamp cooler described as a 4900 CFM down-draft roof/wall evaporative cooler for 1800 sq. ft. (Motor Included)
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Personal clothing to be laundered
200.00
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1987 B250 Dodge Conversion Van (Maintenance was unavailable due to Parker's actions)
800.00
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Perishable food and grocery items
70.00
Hours of pre-litigation January 1, 2014-February 7, 2014 @ 40hr/wk X 5 wk's@ $50/hr = $10,000 (NOT INCLUDING OVER TIME) ½ ton of prime grade hay lossed, scattered, and extra storage inconvenience Total amount due by February 28, 2014
10,000.00 150.00 $13,579.79
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[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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EXHIBIT D
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Kini Cosma Page 21 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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P.O. Box 7918 Klamath Falls, OR 97602 (541) 880-4534 In Properia Persona
4 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Medford Division
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Kini Cosma,
) ) Plaintiff, ) ) vs. ) ) LINDA THOMAS aka LINDA PARKER aka ) THOMAS, KLAMATH COUNTY SHERIFF ) ET AL, CHARLES RADDICK dba M C ) TOWING, DOES 1 through 100, inclusive. ) ) Defendant(s) )
Case No.: 1:14-cv-00438-PA
PLAINTIFFS’ DECLARATION IN SUPPORT OF HER MOTION FOR PARTIAL SUMMARY JUDGMENT
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(1)
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exercised my rights all the way to the Inter-American Court so that I can live free of
18
pointless indignities, confinements and gratuitous humiliations only to suffer more
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I have been horrified with the compounded feeling of degradations when I have
unnecessary and unreasonable freewheeling investigations not serious enough to merit such police intervention.
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(2)
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if the officer is interested in investigating me further for any reason?
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(3)
Must I now be expected to be stopped for any trivial traffic or equipment violation
The police hold a monopoly when it comes to investigating my claims. There are
“exigent circumstances” with the judgment of the police as to probable cause that
27
serves as a sufficient authorization for a seize/search. Yet, there are no basic rules of
28
“reasonableness” that is at the core of the Fourth Amendment and Article 1, section 9 of Page 22 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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1
the Oregon Constitution concerning the emergency aid exception 6 to the warrant
2
requirement applied when it includes Plaintiff's livestock.
3
(4)
When it comes to law enforcement, its whole purpose is to prevent me from
4 5
attending constitutionally protected activities under the guise of enforcing the traffic
6
code or whatever the subjective intent.
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(5)
8
whenever possible to avoid the flagrant and routine pattern and practice of constitutional
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I avoid public spaces where there are a lot of people and I stay at home
violations by the police; Where there are no formal arrests . . .to take conspicuous, immediate steps to prevent “incriminating evidence” to be used against me or the need
12
to discover and preserve unjustifiable evidence; or any evidence necessary to
13
prosecute whatever offense had been obtained.
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(6)
KC Sheriff did not have sufficient suspicion to merit forcing the privacy intrusion
to the extent that was done in a manner that was exceedingly intrusive leaving me
17
without an effective remedy.
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(7)
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enjoyed humiliating me by touting that I am crazy. I wander around feeling like they
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I live in the immediate vicinity (within two blocks) of hostile neighbors 7 who have
know something about me that I don't even know while they have been invasive.
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(8)
This is not the first time in the performance of police duties that they forced me to
throw underwear and clothing all over the Klamath County Fairgrounds.
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6 Specifically, the court held “that a warrantless search or seizure is justified when law enforcement
27
officers have an objectively reasonable belief, based on articulable facts, that the search or seizure is necessary to render immediate aid or assistance to animals that have suffered, or which are imminently threatened with suffering, serious physical injury or cruel death, unless that injury or death is being inflicted lawfully [e.g., hunting, medical research or humane slaughter].” State v. Dicke, 258 Ore. App. 678, 310 P.3d 1170 (2013);State v. Fessenden, 258 Ore. App. 639, 310 P.3d 1163 (2013):
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7 Including M and C towing employees
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Page 23 of 24
[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
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VERIFICATION
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I, Kini Cosma, am a Plaintiff in the above-entitled action. I have read the foregoing and know the contents thereof. The same is true of my own knowledge,
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except as to those matters which are therein alleged on information and belief, and as to those matters, I believe to be true. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Klamath Falls, Oregon. Signed: ________________________ Dated: __________________________ Proof of Service
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I, Kini Cosma, declare I am a resident of the County of Klamath, State of Oregon. I am a competent person 18 years of age or older. I AM A PARTY to or attorney in this proceeding. I certify that the person, firm, or corporation served is the identical one named in this action. On the day of __________________________, 20________ , I personally deposited a true copy of the:
16
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
17
at the United States Postal Service, via first class mail, in a sealed envelope, postage prepaid, addressed to the party Defendant(s)-Respondent(s) to be served, at the party’s business address listed:
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Clerk of Court, James A. Redden U.S. Courthouse 310 West Sixth St. Medford, OR 97501 CityCounty Insurance Services (“CIS”) Attn: Kathi Prestwood File No.: 63166 P.O. Box 9550 Bend, Oregon 97708-9550 503-763-3888 Fax 503-763-3988
Charles Raddick 2710 Alma Alley, Klamath Falls, Or 97601 and dba: M and C Towing 3322 Laverne Ave Klamath Falls, OR 97603 (541) 850-9622 (541) 281-6222
Inter-American Commission on Human Rights Organization of American States 1889 F St NW Washington, D.C. 20006 Case No.: P-878-09
Linda Thomas-Parker 5262 Walton Dr Klamath Falls, OR 97603
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[PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT]
