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Nicholas P. Stroik and the Village of Arena for the arrest and prosecution of Smith
in retaliation for Smiths online Facebook comments criticizing the Village of Arena
Police Department.
Parties
2.
Iredell County, North Carolina. At all times relevant to this Complaint, Smith
resided in the Village of Arena, Iowa County, Wisconsin.
3.
Arena, and acting within the scope of his employment and under the Villages
authority.
Jurisdiction and Venue
5.
Accordingly, this court has original jurisdiction under 28 U.S.C. 1331 and 1343.
6.
The court also has supplemental jurisdiction over Smiths state law
claim because it is a part of the same case or controversy as Smiths federal civil
rights claims. 28 U.S.C. 1367.
7.
substantial part of the events giving rise to Smiths claims occurred within Iowa
County, Wisconsin, which is within the jurisdiction of the United States District
Court for the Western District of Wisconsin.
Background
8.
the Village of Arena Police Departments Facebook page a message thanking local
residents for their assistance in arresting the suspects.
10.
While some comments praised the work of the Village of Arena police, others were
highly critical.
11.
(all sic). Willey later identified Defendant Stroik as the police officer who told her
that the African-American suspects would stand out because they did not belong in
Arena.
13.
Smith then chimed in. He posted two Facebook comments echoing the
view that the police were racist, and otherwise expressing his displeasure with how
the officers handled the matter.
Fuck the fucking cops they ant shit but fucking racist
basturds an fucking all of yall who is racist.
Fuck them nigers bitchs wat you got on us not a dam thing so
fuck off dicks.
(All sic).
14.
comments. Defendant Stroik then deleted not just Smiths comments, but also the
comments of Marks and Willey criticizing the police. Defendant Stroik did not
delete the few Facebook comments praising the police for its handling of the
situation.
15.
with two counts of disorderly conduct (Wis. Stat. 947.01(1)), two counts of
unlawful use of a telephone (Wis. Stat. 947.012), and two counts of unlawful use of
a computerized communication system (Wis. Stat. 947.0125).
16.
him if he had posted the Facebook comments attributed to him. Smith told the
police I put it on there, I dont regret it and I mean it.
17.
Smith at his home for disorderly conduct, unlawful use of a telephone, and unlawful
use of a computerized communication system. Smith was then transported to Iowa
County Jail, where he was held in custody until a bail hearing on July 23, 2012.
18.
At the bail hearing, the court set bail conditions that, among other
19.
On August 10, 2012, the Iowa County District Attorneys Office filed a
On May 30, 2013, a jury found Smith guilty on both counts. The court
entered convictions against Smith on June 10, 2013, and ordered Smith to 1 year of
probation and 25 hours of community service, among other penalties.
21.
Court of Appeals ordered that the convictions be vacated and the charges dismissed,
noting that there was no federal or state case law supporting the states contention
that the First Amendment would allow the criminalization of Smiths criticisms of
the Village and its officers. State v. Smith, No. 2013AP2516 (Wis. App. July 3, 2014)
(Lundsten, J.) (unpublished). The circuit court formally vacated the convictions and
dismissed the charges on August 8, 2014.
Count I: Defendant Stroik
Federal 1983 Claim - Retaliatory Arrest
22.
At all relevant times Defendant Stroik was acting under the color of
25.
Smith was motivated at least in part by a desire to retaliate against Smith for his
protected First Amendment speech.
26.
Defendant Stroiks
and Fourteenth
Defendant Stroiks
violation
Amendment rights were done with malicious intent, or callous or reckless disregard
for Smiths rights, and entitle Smith to recover punitive damages under 42 U.S.C.
1983.
Count II: Defendant Stroik
Federal 1983 Claim False Arrest
31.
32.
probable cause that Smith committed a crime violated Smiths rights under the
Fourth and Fourteenth Amendments to the United States Constitution.
33.
Amendment rights were done with malicious intent, or callous or reckless disregard
for Smiths rights, and entitle Smith to recover punitive damages under 42 U.S.C.
1983.
Count III: Defendant Stroik
Federal 1983 Claim Retaliatory Inducement to Prosecute
35.
request that charges be brought against Smith, were a but-for cause of Smiths
prosecution in State v. Thomas G. Smith, Iowa County Case No. 2012-CM-192.
38.
Smith to suffer deprivations that would likely deter First Amendment speech.
39.
Defendant Stroiks
and Fourteenth
Defendant Stroiks
and Fourteenth
Amendment rights were done with malicious intent, or callous or reckless disregard
for Smiths rights, and entitle Smith to recover punitive damages under 42 U.S.C.
1983.
Count IV: Defendant Village of Arena
Federal 1983 Claim Unconstitutional Policy
43.
Departments Facebook page was an online forum that allowed the Department and
local residents (among others) to comment publicly on matters related to the
activities and policies of the Village of Arena Police Department. (The Facebook
page has since been deleted.)
45.
Departments Facebook page, and as such had the ability to publish posts on the
timeline portion of the Facebook page, and delete comments to such posts made by
other Facebook users.
46.
Facebook friends may see in their Facebook news feed page both the original
timeline post as well as their friends comment on the post.
47.
user is expressing their view not just to the original audience of the Facebook
timeline post, but to all of their Facebook friends as well.
48.
50.
media as the means of communication between the public and their government,
the Village of Arenas failure to adequately train Defendant Stroik amounts to
deliberate indifference to an obvious need for such training, which is likely to result
in incorrect decisions.
51.
Defendant Stroik, Defendant Stroik initiated the arrest and prosecution of Smith in
violation of his rights under the First, Fourth, and Fourteenth Amendments, as
described in the paragraphs above.
52.
violated Smiths rights under the First, Fourth, and Fourteenth Amendments.
53.
committed while Defendant Stroik was carrying out his duties as an employee of
the Village of Arena.
10
56.
At all relevant times, Defendant Stroik was acting within the scope of
11
JURY DEMAND
Smith demands a trial by jury on all issues so triable.
Respectfully submitted,
THOMAS G. SMITH,
by his attorney,
/s/ Thomas B. Aquino
Thomas B. Aquino
Aquino Law LLC
131 W. Wilson Street, Suite 1201
Madison, WI 53703
Phone: (608) 251-6735
Fax: (608) 338-0892
Email: tom@aquino-law.com
State Bar No. 1066516
Dated: November 24, 2014
12
JS 44 (Rev. 09/11)
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 required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Thomas G. Smith
Iredell County, NC
NOTE:
Thomas B. Aquino, Aquino Law LLC, 131 W. Wilson Street, Suite 1201
Madison, WI 53703 (608) 251-6735
U.S. Government
Plaintiff
3 Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
4 Diversity
(Indicate Citizenship of Parties in Item III)
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
(Excl. Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
V. ORIGIN
1 Original
Proceeding
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
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Med. Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
Citizen or Subject of a
Foreign Country
Foreign Nation
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
510 Motions to Vacate
Sentence
Habeas Corpus:
530 General
535 Death Penalty
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
DEF
1
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Mgmt. Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Empl. Ret. Inc.
Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
OTHER STATUTES
IMMIGRATION
462 Naturalization Application
463 Habeas Corpus Alien Detainee
(Prisoner Petition)
465 Other Immigration
Actions
Transferred from
2 Removed from
3 Remanded from
4 Reinstated or 5 another district
6 Multidistrict
State Court
Appellate Court
Reopened
Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983
DEMAND $
DOCKET NUMBER
11/24/2014
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
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JUDGE
MAG. JUDGE
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Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this
box is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes
unless diversity.
Example:
U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Western District
__________
DistrictofofWisconsin
__________
Thomas G. Smith
Plaintiff
v.
Nicholas P. Stroik, and Village of Arena
Defendant
)
)
)
)
)
)
)
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, who is
; or
; or
Other (specify):
.
My fees are $
0.00
Date:
Servers signature
Servers address
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Western District
__________
DistrictofofWisconsin
__________
Thomas G. Smith
Plaintiff
v.
Nicholas P. Stroik, and Village of Arena
Defendant
)
)
)
)
)
)
)
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, who is
; or
; or
Other (specify):
.
My fees are $
0.00
Date:
Servers signature
Servers address
Save As...
Reset