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

FILED

U.S. DISTRICT COURT

EASTERN
DISTRICT ARKANSAS

IN THE UNITED STATES DISTRICT COURT

AUG 172015
EASTERN DISTRICT OF ARKANSAS
JAMES W. M~c. LERK
WESTERN DIVISION
By:
~<J?'LPLAINTIFF
EP CLERK
MARY BIVENS, d/b/a B&M MOBILE HOME PARK

vs.

CITY OF BRYANT, ARKANSAS

DEFENDANT
This case assigned to

COMPLAINT

Distr~t Joogp }.A

and to Magistrate Judge

.

arc5ho

HtUrl ~

COMES THE PLAINTIFF, MARY BIVENS, d/b/aB&M MOBILE HOME PARK, and
for her cause of action against the defendant states and alleges as follows:
I.

Plaintiff is a citizen of the City of Bryant, Saline County, Arkansas who resides on
Arkansas State Highway 5 North just past its intersection with Shobe Road at a postal address of
9404 State Highway 5 North, Alexander, AR 72202, the said highway being at that point an
extension of historic Stagecoach Road, as the thoroughfare is sometimes locally designated. She
and her late husband, Bennie Bivens, built and opened early in the year 1970 the mobile home
park that is the subject of this claim on property adjacent and contiguous to their home. The
couple together, and plaintiff alone after her husband's death in 2001, have continued to operate
this business without interruption.

II.
Defendant is an Arkansas City of the First Class with administrative offices located at
219 Southwest Third Street, Bryant, AR 72022 whose agent for service of process at that address

JI

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 2 of 11

is the Hon. Jill Dabbs, Mayor, with a certified copy to Mr. Chris Madison, Bryant City Staff
Attorney, also at that address.
III.
B&M Mobile Home Park consists of approximately 8.5 acres of flat, partially forested
non-flooding land of a consistency and contour particularly conducive to the placement and
maintenance of "double wide" and lesser residential trailer dwellings, some of which are owned
by their tenant occupants and others by plaintiff. Tue majority of the clients of B&M are persons
of Hispanic descent who are employed in Bryant and nearby communities as semi-skilled and
day laborers at or slightly above the minimum wage, making it difficult for them to find
affordable housing for themselves and their families, which often include small children. B&M
Mobile Home Park is one of a very few area lodgings available to such persons.

IV.
All of plaintiffs state, federal and county taxes are current and plaintiffs business has
been in good standing with all agencies since a sewerage discharge dispute was resolved with the
Arkansas Department of Environmental Quality (ADEQ), discussed infra, in December 2010
requiring the construction at plaintiffs expense of a state of the art waste disposal pipeline which
was completed and accepted by defendant on or about January 1, 2012.

v.
This is an action for violation of plaintiffs civil rights under the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution, 42 U.S.C. 1983, the Arkansas Civil
Rights Act of 1993, the Arkansas Constitution, the Arkansas common law torts of trespass, false
arrest, conversion, intentional infliction of emotional distress and interference with an
advantageous business relationship by defendant's managerial officials, officers, employees and

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 3 of 11

agents through, inter alia, the selective and capricious compilation and submission of inflated
utility invoices to plaintiff for water and sewerage services which must be passed on to her
tenants, arbitrary and selective building code and animal control enforcement citations, and the
selective and arbitrary stopping, inspection, searching and citation of plaintiffs Hispanic lessees
and their guests and others of Hispanic descent, and the impoundment of their vehicles for the
retrieval of which they must pay towing and storage fees, and otherwise engaging in the studied
harassment of persons of Hispanic heritage for the purpose of forcing them to leave the City of
Bryant. The attendant impact on plaintiffs business from these actions against her tenants has
been financially devastating.
VI.
During the fall and winter of 2010- 2011 plaintiff expended more than $250,000.00 to update
the B&M Mobile Home Park sewage system with the construction of a completely new, high
quality, state-of-the- art effluent pipeline and tie-in to connect B&M's to the defendant's
sewage system near Interstate 30. A full-time work crew excavated several tons of rocky soil
following which the pipeline was laid in strict compliance with Department of Environmental
Quality and Highway Department regulations. Defendant mandated that the plans and
specifications the project be approved by its Director of Public Works (Water & Sewer), Mr.
Monty Ledbetter, as comporting with the connection and flowage requirements of defendant's
then-existing sewage system. Throughout the more than three (3) months of construction,
plaintiff and her contractor were in constant contact with the said Ledbetter, who frequently
performed on-site inspections of the progress of the work and granted his approval, finally
accepting the entire project on or about January 1, 2012. On numerous occasions, Mr. Ledbetter
commented that the new pipeline would be a boon to the city's sewage system since other

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

residences would be able to connect to it for disposal of their own waste. He stated that some
allowance would be made in plaintiffs future water and sewer billings in light of this fact. While
plaintiff was under a settlement agreement with ADEQ to reconstruct her disposal system, and
no specific money amount was stated by the defendant's representative in this regard, Mr.
Ledbetter's assurances prompted plaintiff to demand of her contractor the highest quality of
material and workmanship.

VIL
Notwithstanding the forgoing, beginning within months of the completion of the new
pipeline and continuing to the present day, a period of more than three (3) years, the defendant
has not only not provided any billing allowance to plaintiff but has more than doubled its
charges to her with no allowance, in spite of the connection of an untold number of additional
residences to the line constructed by her, a connection surcharge of $39,000.00 (an arbitrary levy
which she nonetheless dutifully paid) and a number of service economies claimed by the
defendant to reduce water and sewerage charges to its other residents. When in 2013 plaintiff
complained of the increases to the defendant, she was told that the primary reason for them was a
series of faulty meters it had installed which for various reasons did not properly register B&M's
usage. She was informed that the breakdown of these devices made it impossible correctly to
gauge flow, which the defendant could only determine by estimation. In just over one year
defendant replaced its meters for plaintiffs business on three separate occasions. On March 26,
2014 plaintiff wrote to the said Ledbetter, Mr. Robert Griffin, the Chairperson of its Water and
Sewer Advisory Committee, and Mr. Buddy Fowler, its utility billing director, recounting the
foregoing facts and requesting an accounting of her water and sewer service accounts, including

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 5 of 11

the precise service and maintenance history of the three replaced meters and the effects of their
discrepancies on her billings. EXHIBIT (I). She asked to be told what amounts were billed on
estimates as opposed to actual meter data and how those estimates were arrived at. She further
asked to be informed of what other residences had been permitted to connect with the new
pipeline and for copies of their usage charges so she could compare them with her own. She
renewed her request for some billing allowance. The defendant, through Mr. Ledbetter,
responded on or about April 15, 2014 with duplicate copies of her previous invoices but provided
no direct response to her information requests. No names of additional users were provided nor
were copies of their invoices. Plaintiff responded on April 30, 2014 with an itemized reiteration
of her requests to which no response has been received.
VIII.
Defendant's code enforcement personnel, including one Doug Smith and others, have
undertaken a sustained campaign of harassment of plaintiffs Hispanic tenants for minor
discrepancies, such as cracked window panes, the absence of 2-step bannisters, unsealed portions
of roofing, yard debris and the like. Threats of home confiscation, closure and removal are
communicated to Hispanic homeowners and their stay-at-home spouses, many tending small
children.
IX.
Defendant's animal control unit has on repeated occasions ticketed to Municipal Court
owners of pets in Hispanic households allegedly found without leashes on B&M property or
whose collars and tags were temporarily removed for grooming. One dog, which had been a
member of its household for more than five (5) years, was seized and taken to the city pound
where, due to a notification delay, its owner was unable to claim it during working hours before

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 6 of 11

it was euthanized. Citations against owners of other animals, if they retain counsel, are routinely
dismissed without a hearing.

x.
Defendant's police officers, including one Scott Johnson and others, routinely pull over
and inspect vehicles with Hispanic occupants entering or leaving B&M Mobile Horne Park or
leaving or entering the highway at Shobe Road. Identification papers, including drivers licenses,
entry visas, work permits and other immigration documents are demanded for inspection without
probable cause indicating the commission of a criminal or traffic offense or improper
immigration status. Officers often congregate in their squad cars on the vacant lot at Highway 5
and Shobe Road immediately next to plaintiff's property from which they initiate these forays,
some of which result in the seizure, towing and impoundment of vehicles, necessitating payment
of exacting tow and storage fees in addition to fines for minor infractions, such as sight-safety
impediments, no insurance or title papers, and the like for which such severe preliminary
sanctions are not normally imposed on others.
XI.
The actions hereinabove described of the defendant's personnel were committed by
them in the course and scope of their employment or agency and under the official color of their
offices as empowered by the defendant, and with the awareness and/or encouragement of their
superiors, and are, therefore directly imputed to the defendant as their employer, master and/or
principal, respondeat superior.
XII.

As a direct and proximate result of this concerted campaign of intimidation and

harassment by the defendant, plaintiff has suffered a loss of tenants and has been impeded in her

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 7 of 11

ability to engage replacements. From some 65 lot-space leases in full payment performance on or
about January 1, 2012 B&M Mobile Home Park has fallen to fewer than 45, a loss of more than
$10, 000.00 in monthly income. Virtually to a person, departing tenants ascribe their decisions to
quit their tenancies to arbitrary police and code enforcement harassment such as that above
described and to the higher rates plaintiff has been forced to pass on to them for water and
sewage utility services. Over the past three (3) years, this has cost plaintiff more than
$430,000.00 in lost revenue on top of the excessive water and sewerage charges themselves, for
all of which she prays compensatory damages in an amount reasonably and fairly to compensate
her for her losses.
XIII.
As a direct and proximate result of the said actions of the defendant plaintiff has suffered
a substantial loss in the market value of her property, impairing her ability to sell it at a fair and
reasonable price through two (2) separate commercial realtors over the past three (3) years,
increased administrative and managerial costs in its operation and in attorneys fees, as well as
harm to the property's reputation and public image as a secure family lodging space for working
people, for all of which she also prays compensatory damages in fair and reasonable amount..
XIV.

As a direct and proximate result of the defendant's actions, plaintiff has suffered mental
anguish and emotional distress, headaches, nervousness, loss of sleep and depression, including
the fear of bankruptcy and the loss of her entire estate built up over many years, for all of which
she also prays compensatory damages in a fair and reasonable amount.

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 8 of 11

xv.
The above described actions of the defendant through its employees, officers and agents
constituted willful and wanton misconduct, for which plaintiff further prays for an award of
exemplary damages.
WHEREFORE, ALL PREMISES CONSIDERED, plaintiff prays judgment against the
defendant in an amount of damages greater than $75,000.00 exclusive of interest and costs
sufficient to compensate her for her losses, for an Order permanently enjoining the defendant
from such conduct in the future and for all other appropriate relief to which she shall be entitled.
Plaintiff further prays for an award of exemplary damages against the defendant in an
amount sufficient to deter it and other municipalities and those acting under co1or of their
authority from such conduct in the future.
Plaintiff Moves the Court for an Interim Order restraining the defendant from suspending
water and- sewage services to her property pending the resolution of this cause and for a
Scheduling Order expediting discovery, and for a preliminary Hearing.
Plaintiff reserves the right to plead further upon discovery.

SandyS.McM
AR Bar No. 66 49

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 9 of 11

Mary Bivens
B&M Mobile Home Park
9404 Highway 5 North
Alexander, AR 72002-8527

March 26, 2014

Mr. Monty Ledbetter
Public Works Director (Water & Sewer).
City of Bryant Administration Building
210 SW 3d Street
Bryant, AR 72022
Mr. Robert Griffin
Chair, Water & Sewer Advisory Committee
City of Bryant Administration Building
210 SW 3d Street
Bryant, AR 72022 ..
Mr. Buddy Fowler
Water & Sewer Billing Director
City of Bryant Administration Building
210 SW 3d Street
Bryant, AR 72022 ..
Re: Accounts 003983-000 & 010026-000 Irregular & Exorbitant Water & Sewage
Charges; Repeated Malfunctions of Successive City Meters, & Refusal of City to
Apportion Credit to Homeowner for Costs of Installation of State of the Art
Pipeline & Tie-In System Funded by Her But Used by City to Service Other
Multiple Patrons; Request for Defective Meter History,Accounting & Adjustment
Gentlemen:
This is respectfully to request, pursuant to the Freedom of Information Act, an accounting
of my metered water and sewer service charges for the past three (3) calendar years and for 2014
to-date.
As you may recall, in the fall and winter of 2010 - 2011 I expended more than $250,000.00
to construct a brand new state of the art pipeline and tie-in system to connect our sewage service
area adjacent to Arkansas Highway 5 (Stagecoach Road) near its intersection with Shrove Road,
a lateral connector to the I-30 freeway access road.

EXHIBIT (1)

Case 4:15-cv-00515-DPM Document 1 Filed 08/17/15 Page 10 of 11

It was necessary for a full-time pipeline crew to excavate tons of rocky earth then lay the
pipeline in strict compliance with ADEQ and Highway Department regulations. Plans for the
project had to be approved by Mr. Ledbetter as comporting with connection and flowage
requirements for the then-existing Bryant sewer system. This was done, and the new system was
completed by us and accepted by him shortly thereafter, on or about March 1 2011. Your records
will reflect the exact date and the results of the many inspections that were conducted as the
work progressed as well as the final inspection before acceptance.

During this project we were of necessity in regular contact with Mr. Ledbetter who
frequently acknowledged that the new pipeline would be a boon to the city's sewage system
since any number of homes both old and new would be able to connect to it for disposal of their
own waste. While he made no specific promise of compensation, he did indicate that some
allowance would be made by the city in our future water and sewage billings in view of the large
expenditure involved in building a system that would be of long term use to the city in servicing
other residents. I did not entirely rely on such for the building of the pipeline, since it was
necessary for us to comply with ADEQ standards, but it was a factor in determining the quality
of the materials and workmanship. Nothing was spared in other words to make sure it was
completed in exemplary fashion.
Over the ensuing months, however, it has become apparent that not only have I not
received any billing consideration for the project, but that my water and sewage charges have
rapidly increased, proportionately it seems to a greater extent by far than other homeowners. The
billings have also been unpredictable and erratic. Enclosed, for example, is a print-out of charges
for the years 2010 through 2013. One can quickly see that our sewer charges total for 2013 are
almost $20,000.00 greater than those for 2011 ($49, 832.63 compared to $30, 069.65). One
would have expected a comparable rise in water billings, but they fell by half, from some
$32, 000 in 2011 to approximately $16,000 in 2013. The reason we were informally told by
Water Department employees was due to a series of faulty meters which did not properly register
our usage. This "would be corrected" we were told for the current year, but we were not told
exactly how this could be done. When I inquired later on this issue, I was told that it was simply
not possible to get an accurate reading from the water meters and that "some estimating" would
have to be done. In just over a year, the city replaced its water meter on our property three (3)
separate times.
In view of the the foregoing and the considerable hardship continued rising water and seage
charges are causing me, I respectfully ask for a full accounting of my water and sewage service
on the above accounts. As a part of this accounting I wish to know the precise service and
maintenance history of each of the three replaced meters, including exactly why they were
displaced, who examined them and what broken or defective parts were found and the effect of
those defects on our usage numbers for the times in question.
I also need to know when we were billed based not on meter readings but on usage
estimates and how those estimates were arrived at.
I also want to know how many other homes and businesses are now tied into the new
pipeline I paid for and what their annual usage charges are so I can compare them to my own.

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

I also want to know if you plan to give me some allowance for having built and paid for the
new sewage pipeline and tie in.
It is very respectfully requested that I be provided with this information in time to appear
before the Water and Sewage Advisory Committee at its May 2014 meeting the first Tuesday of
that month.

Sincerely yours,

Original ss//ss by Mary Bivens

Mary Bivens
Cc: Hon. Jill Dabbs
Mayor, City of Bryant
Bryant Administration Building
210 S.W. 3d Street
Bryant, AR 72022
City Attorney
Bryant Administration Building
210 S.W. 3d Street
Bryant, AR 72022

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

CIVIL COVER SHEET

JS 44 (Rev. 12/12)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court This form, approved by the Judicial Conference of the United States in September 1974, is reqmred for the use of the Clerk of Court for the
purpose of initiating the civiLdocket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Mary Bivens, d/b/a B&M Mobil Home Park

S~a~l=i=n=e~-----

(b) County of Residence ofFirst Listed Plaintiff

City of BByant, Arkansas

NOTE:

Sandy S. McMath
711 West 3d StreetSOl-396-5414
Little Rock AR 72201
II. BASIS OF JURISDICTION (Place an ''.X" in One Box Only)

02

U.S. Government
Plaintiff

'*1

Federal Question
(US Government Not a Party)

U.S. Government
Defendant

04

Diversity
(Indicate Citizenship ofParties in Item III)

m. cmZENSHIP OF PRINCIPAL pARTIES (Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State

Citizen of Another State

0
0

0
0
0
0
0

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

0
0
0
0
0
0
0
0

5t
0

0
0
0
0
0
0

J -~-~

0 2

Incorporated and Principal Place

of Business In Another State

0 5

0 3

Foreign Nation

0 6

r.

,,.

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers'
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
3 55 Motor Vehicle
Product Liability
360 Other Personal
Injwy
362 Personal Injury Medical Malpractice

PERSONAL INJURY
0 365 Personal Injwy Product Liability
0 367 Health Care/
Pharmaceutical
Personal Injwy
Product Liability
0 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
0 3 70 Other Fraud
0 371 Truth in Lending
0 380 Other Personal
Property Damage
0 385 Property Damage
Product Liability

,jc,;,

210 Land Condemnation

220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
0 4
0 4
of Business In This State

0
0
0
0
0

DEF

ii ix 1

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

I

(IN US PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

( C) Attorneys (Firm Name, Address, and Telephone Number)

01

12{_ 440 Other Civil Rights

0 441 Voting
0 442 Employment
Jt443 Housing/
Accommodations
0 445 Amer. w/Disabilities Employment
0 446 Amer. w/Disabilities Other
0 448 Education

_S_a~l_i__n_e~-----

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

Habeas Corpus:
0 463 Alien Detainee
0 510 Motions to Vacate
Sentence
0 530 General
0 535 Death Penalty
Other:
0 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
0 560 Civil Detainee Conditions of
Confinement

0 625 Drug Related Seizure

ofproperty 21 USC 881
0 690 Other

422 Appeal 28 use 158

0 423 Withdrawal
28 USC 157

"''

0 820 Copyrights
0 830 Patent
0 840 Trademark

,,,~

0 7 IO Fair Labor Standards

Act
0 720 Labor/Management
Relations
0 740 Railway Labor Act
0 751 Family and Medical
Leave Act
0 790 Other Labor Litigation
0 791 Employee Retirement
Income Security Act

0
0
0
0
0

.:.w"

0
0
0
0
:.U: 0
0
0

861 HIA (1395ff)

862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

'~Wl.EoCoF-,~"

0 870 Taxes (U.S. Plaintiff

or Defendant)
0 871 IRS-Third Party
26 USC 7609

0
0
0
0
0
0
0
0
0

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statuto1y Actions
891 Agricultural Acts
893 Environmental Matters
89 5 Freedom oflnformation
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

0 462 Naturalization Application

0 465 Other Immigration
Actions

V. ORIGIN (Place an "X" in One Box Only)

~1

Original
Proceeding

0 2 Removed from
State Court

Remanded from
Appellate Court

0 4 Reinstated or
Reopened

0 5 Transferred from
Another District

0 6 Multidistrict
Litigation

(specify)

e.ff~s:i~i(f~1'1~Jwhich you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION .....,.1--z1:-d-e-sc-r-ip-tio_n_o_f-ca-u-se-:----------------------------------

vio lattn
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IFANY

JURY DEMAND:

DOCKET NUMBER

DATE

RECEIPT#

AMOUNT

APPLYING IFP

tenantS'ci vil

CHECK YES only if demanded in complaint:

CHECK IF THIS IS A CLASS ACTION

ER RULE 23, F.RCv.P.

JUDGE

MAG.JUDGE

0 Yes

0 No

right