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ROGER SHULER, CAROL SHULER Plaintiffs
CIVIl, AC:TION NO.
C',)-l 0···1< ·-1 21 ~,-.::;
WILLIAM E. SWATEK; MIKE MCGARITY; }
ALABAMA STATE BAR; ClIRIS CURRY, }
individually and his official capacity as Shelby County }
sheriff; BUBBA CAUDILL, individually and his }
official capacity as a Shelby County deputy; HUB }
HARRINGTON, individually and his official capacity } as Shelby County circuit judge }
1. Plaintiffs Roger Shuler and Carol Shuler ("Shulers") bring this action for declaratory
judgment, equitable relief, and money damages, instituted to secure the protection of and to
redress unlawful actions against the plaintiffs. The suit is brought to secure the protection of
and to redress the deprivation of rights secured by Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S. Code 2000, et seq; 42 U.S. Code 1985, the Fourteenth Amendment
through 42 U.S. Code 1983, and the laws of the State of Alabama. The plaintiffs seek
compensatory and punitive damages and request a jury trial.
JURISDICTION AND VENUE
2. The unlawful actions alleged herein below were committed by the defendants within Shelby County, Alabama. Plaintiffs are residents of Shelby County, Alabama. Jurisdiction in this Court is conferred by 28 USC 1331, 1343.
3. Roger Shuler and Carol Shuler ("Shulers") reside in Shelby County, Alabama, and are owners of property at 5204 Logan Drive. This is their primary residence.
4. Defendant William E. Swatek is an attorney licensed to practice law in Alabama, with an office in Pelham.
5. Defendant Mike McGarity resides in Shelby County.Alabama, and is the owner of property at 5200 Logan Drive, next door to the Shulers.
6. Defendant Alabama State Bar has jurisdiction over the conduct of all attorneys in Alabama and has its primary offices in Montgomery.
7. Defendant Chris Curry is the current sheriff of Shelby County, Alabama, and has served in that position at all times material to this action. Defendant Curry is a state actor for purposes of 42 U.S. Code 1983. Defendant Curry is sued individually pursuant to 1983 for violations of the Fourteenth Amendment as further set out herein.
8. Defendant Bubba Caudill is a deputy with the Shelby County Sheriffs Department and has served in that position at all times material to this action. Defendant Caudill is a state actor for purposes of 42 U.S. Code 1983. Defendant Caudill is sued individually pursuant to 1983 for violations of the Fourteenth Amendment as further set out herein.
9. Defendant Hub Harrington is a circuit judge in Shelby County, Alabama and has served in that position at all times material to this action. Defendant Harrington is a state actor for purposes of 42 U.S. Code 1983. Defendant Harrington is sued individually pursuant to 1983 for violations of the Fourteenth Amendment as further set out herein.
10. The Shelby County Sheriffs Office conducted a sheriff's sale of the house and property (5204 Logan Drive) owned by Roger and Carol Shuler (''the Shulers") on May 12,2008. The sale, on the steps of the Shelby County Courthouse, was conducted by Deputy Bubba Caudill, at the direction of Sheriff Chris Curry.
11. The sale allegedly was for the purpose of satisfying a judgment against Roger Shuler in the amount of $1 ,525. The judgment had been entered in Shelby County Circuit Court in June 2004, in favor of Mike McGarity, who was represented by Attorney William E. Swatek.
12. Swatek made the only bid on the property, and he was awarded rights to the Shulers' property. A sheriff's deed was placed on the Shulers' property in Swatek's name, and the deed remains in place.
13. The sheriff's sale was conducted without due process of law and violated Alabama statutory, procedural, and case law in multiple respects.
14. Under Alabama law (Code of Alabama 6-9-210,211) a sheriff's sale cannot proceed without a judgment lien. And a judgment lien cannot attach unless a certificate of judgment is filed in the appropriate Probate Court. Alabama law states: "The judgment creditor's rights in the property attach upon the act of recording the certificate of judgment. (Garrett v. Garrett, 628
So. 2d 659, Ala. Civ. App., 1993.) A certificate of judgment never was filed on the Shulers' property, so neither McGarity nor Swatek has any rights to said property.
15. Under Alabama law (McLaren v. Anderson, 81 Ala. 106, 1886), a sheriff must give written
notice to a debtor of a right to claim exemptions. Sheriff Chris Curry never provided such
notice, and Roger Shuler informed Bubba Caudill of this numerous times. But the sale took --place, even thougnlack of notice made the-Shulers' property-exempt from levy~----·---·-------
16. Under Alabama law (Rule 69, Alabama Rules of Civil Procedure), a judgment debtor may file a notarized claim of exemption with the sheriff at any time after levy but prior to a sale. Roger Shuler filed such a claim well in advance of the sale, and by law, this puts a stay on any sale unless the creditor successfully contests the claim. Mike McGarity never contested the claim of exemption. Under Rule 69(f) ("No Contest Filed"), failure ofthe judgment creditor to file a timely contest with the sheriff causes all property claimed as exempt to be released to the debtor-with costs taxed against the judgment creditor.
17. The genesis of the instant lawsuit dates to December 1998, when Mike McGarity bought the property at 5200 Logan Drive. The Shulers had lived in their home for approximately nine years and never had a serious problem with a neighbor. But McGarity bought the house next to them in a mysterious, under-the-table deal that, based on information and belief, was engineered by a real-estate agent named Phyllis Tinsley. The previous owner of the house was Fred Yancey, the head football coach at Briarwood Christian School, and his wife, Sharon. The Shulers enjoyed an excellent relationship with the Yanceys. But in an unannounced fashion, with no for-sale sign in the yard, the Yanceys sold their house and moved to a home on the Briarwood campus, where they reportedly lived free of charge for several years. McGarity bought the Yancey house and immediately began trampling on the
Shulers' property rights. Perhaps this is partly explained by the fact that-as the Shulers' later discovered-McGarity has an extensive criminal record. He has at least eight convictions in his background, including one for a sex-related offense and one for a violencerelated offense.
18. Before McGarity had even fully moved in, he built a fence on the Shulers' property, taking
.. ·_·up-affiioSttfOOsquareTeerortlierr propert-y:-AooursixliiOiiflis-passeaoeforeTne-Slililers--···_-- ._- -
recognized the encroachment and notified McGarity. He removed the fence, but refused to reimburse the Shulers for expenses they had incurred. Apparently angered by the fence issue
and determined to retaliate against the Shulers, McGarity (and his family members and
guests) proceeded to trespass frequently on the Shulers' property. Multiple verbal warnings
to the McGaritys failed to solve the problem. On one occasion, Mike McGarity told Roger Shuler, "We're going to keep on coming" and "I'm going to sue you for harassment." The Shulers consulted an attorney, William Lewis, who wrote McGarity a letter, explaining criminal-trespass law and stating that he would receive no further warnings. That, however,
did not resolve the problem, and the Shulers witnessed Mike McGarity trespassing on
multiple occasions after he had received the letter via certified mail.
19. Concerned about their property rights and possible liability issues, the Shulers visited the Shelby County District Attorney's Office. A lawyer there prepared a complaint against McGarity for criminal trespass (third degree), and Roger Shuler ("Shuler") signed it in the presence of magistrate Mary Harris. Carol Shuler did not sign it because there was no space for a second signature.
20. McGarity pleaded not guilty, and a bench trial was held in Shelby County District Court in spring 2000. According to a transcript of the trial, McGarity confessed to the crime. But
Judge Ron Jackson, after giving McGarity a stem warning and indicating he believed the Shulers' story, ordered an acquittal.
21. William E. Swatek represented McGarity in the criminal case. And even though Swatek had witnessed his client confess to the crime as charged, he filed a lawsuit on McGarity's behalf against Roger Shuler for malicious prosecution and false imprisonment, seeking $25,000in ---------. ------damages.1VfcGarity-later-aroppeadiefiilse-imI)llSOnment clairil,oufidaed-a Claunfoi------ --------
22. The Shulers filed three motions for summary judgment in the lawsuit, raising distinct and new issues with each one, and each MSJ was properly executed and supported with material facts, as required by law. McGarity filed a response, but presented no timely or admissible evidence on the first MSJ. On the other two, McGarity filed no response at all. Under Alabama law, all three MSJs had to be granted and the case dismissed in a nondiscretionary ruling. But Shelby County circuit judges J. Michael Joiner (a frequent golf partner with Swatek) and G. Dan Reeves refused to follow black-letter law. As a matter oflaw, the case could not go to trial. But it did go to trial in summer 2004. A jury ruled in Shuler's favor on trespass and awarded $1 in damages. The judge dismissed McGarity's malicious prosecution claim, but allowed the conversion claim to go to the jury. The conversion claim was based on the fact that Shuler had noticed multiple items on his yard-whiffle balls, golf balls, footballs, soccer balls, debris-and picked them up and put them in a bag in his garage because no one had ever claimed them. After suing Shuler, McGarity claimed the items were his and estimated their value at $25. A Shelby County jury awarded $1,525 in compensatory and punitive damages because Shuler had cleaned his yard of foreign objects, which had arrived there due to trespass.
23. Shuler filed multiple post-trial motions and appeals, which either were denied or never ruled upon. The judgment against Shuler was void on multiple grounds: (1) It was void because the court acted in a manner inconsistent with due process. (Greene v. Connelly, 628 So. 2d 346, Ala. 1993.); (2) It was void because it violated the Fourteenth Amendment of the U.S. Constitution. The U.S. Supreme Court has held: "The Due
------Ptocess Clauseentlnesaperson toan impartial ana~dlsmtereSte~cr triounafin Dotllclvi! and~--
criminal cases .... The neutrality requirement helps to guarantee that life, liberty, or
property will not be taken on the basis of an erroneous or distorted conception of the facts
or the law. (Marshall v. Jerrico, 446 Us. 238, 1980.) Multiple erroneous rulings in the Shelby County case clearly show that Judges Joiner and Reeves were not impartial
arbiters. And the Shulers' property wound up being seized as a result; (3) It was void
because numerous necessary parties were not joined in Shuler's counterclaim. Alabama
law states: "The absence of a necessary party requires a dismissal of the cause without prejudice or reversal with directions." (Holland v. City of Alabaster, 566 So. 2d 244, Ala. 1990.); (4) It was void because a verdict was improperly rendered with fewer than 12
jurors. Rule 48 of the Alabama Rules of Civil Procedure states that a jury of fewer than
12 jurors is proper only when it is stipulated by the parties. The parties did not stipulate
the use of fewer than 12 jurors, making the judgment unlawful.
24. While fighting the lawsuit, the Shulers became aware of William E. Swatek's 30-year history of ethical problems in the legal profession. They discovered that he had been disciplined three times by the Alabama State Bar, including a suspension of his license for acts of "dishonesty, misrepresentation, fraud, and deceit." They found that, in the early 1980s, Swatek had been tried for perjury in criminal court. Based on multiple
examples of dishonest behavior by Swatek in the McGarity lawsuit, Roger Shuler filed a
complaint against Swatek with the Alabama State Bar. Under the rules of the bar, a
lawyer who has a history of ethical problems is supposed to be subject to particularly
strict scrutiny. But the bar did not even investigate Shuler's allegations against Swatek.
When Shuler questioned investigator Cheryl Rankin about it, she admitted that the bar
receives so many complaints that it cannot even look at those filed by persons who are
not represented by the lawyer in question. In other words, contrary to bar rules, a rogue
lawyer in Alabama, such as Bill Swatek, can do pretty much anything he pleases to an
opposing party and get away with it.
25. In fall 2006, McGarity's criminal tendencies became manifest. On October 14,2006,
Shuler went to the entrance of the Broken Bow South neighborhood, where he lives, to
remove signs that had been unlawfully placed in the right of way and were blocking the
view of drivers trying to pullout on Highway 119. McGarity followed Shuler to the
entrance and began putting the signs back up. Shuler informed McGarity that the signs
were a hazard, and they were going to stay down. McGarity responded by threatening to
fight Shuler. "Let's get it on, right here," McGarity said. Shuler said he wasn't interested
in a fight, but he repeated, "The signs are going to stay down," and turned to walk away.
McGarity then took one of the signs and swung it as hard as he could and hit Shuler in
the back, leaving a bloody, red welt. A neighbor, Jeannine Dorroh, reported to the Shelby
County Sheriff's Office that she witnessed the assault. Deputy Stockman, who took the
report, erroneously classified it as a misdemeanor. But Alabama law is clear: An assault
committed with the use of a dangerous instrument, such as a roadway sign, is a Class C
felony (Code of Alabama 13A-6-21). Shuler spoke with several officials in the Shelby
County Sheriff s Department, along with deputy magistrate Lou McLeroy, and all refused to change the charge to a felony. McLeroy said she would issue a complaint against McGarity if Shuler would sign a document saying that it was a misdemeanor. Shuler refused to sign a false document and had no choice but to not bring criminal charges.
in the Shelby County case, plus other justice-related issues. About the same time, the
Shulers started hearing from debt collectors-Pennsylvania-based NCO and Birmingham-based Ingram & Associates-about a debt Roger Shuler allegedly owed American Express. Because of this, Shuler began reporting about debt-collection issues
on his blog.
27. As of fall 2007, more than three years had passed, with McGarity making no effort to collect on the judgment. Neither Swatek nor McGarity ever sent a demand letter regarding the judgment. But roughly three months after Shuler started writing about the case on his blog=-and also writing about debt collectors who had repeatedly violated federal law-McGarity and Swatek suddenly became interested in collecting the judgment.
28. In September 2007, Swatek applied for a writ of execution on McGarity's behalf, threatening seizure of the Shulers' cars and house. The writ was issued by Clerk Mary Harris on September 21,2007. On February 8, 2008, the Shulers received a notice of levy, signed by Sheriff Chris Curry, stating that the house and property at 5204 Logan Drive would be advertised and sold. Over a period of several weeks, the Shulers received approximately 25 phone messages from Deputies Bubba Caudill and Eddie Moore. The
tone of the calls was "we're fixing to sell that property" and "have you worked something
out with the other side?"
29. In a phone conversation with Bubba Caudill, Roger Shuler stated there was nothing to
work out. The judgment itself was void, Shuler said, and he had filed a claim of
exemption with the sheriffs office-and McGarity had not contested it, meaning the
~ - ---- - - -- ----- - ----_ - --- -
----pr()perfywasexempt TrOm leVYaiidno-salecQul<fiook-pface. Caudill told Shuler that
Judge Harrington had ordered that the sale proceed, and the court file shows that
Harrington indeed signed off on the sale. This occurred even though Alabama law holds
that a sheriff's sale is recognized by statute and does not require any action by a judge.
(Ex Parte Arthur Lynn, Ala. Civ. App. 1999.) In fact, that court found that a sheriffs sale
is not a judicial sale, so Harrington acted outside his official capacity as a judge in
causing the Shulers' property rights to be unlawfully auctioned.
30. For several weeks leading up to the sheriffs sale, including the date the sale took place,
the Shelby County Reporter newspaper included a notice that had been placed by Sheriff
Chris Curry, stating that a sale would be conducted of Roger Shuler's property to satisfy
a judgment in favor of Mike McGarity. This notice also was placed on public bulletin
boards in the Shelby County Courthouse. Nowhere did Curry state that the judgment was
void as a matter of law. Nowhere did Curry state that the sale itself could not take place
as a matter of law-mainly because Shuler had filed a claim of exemption that
automatically put a stay on the proceeding. Nowhere did Curry state that, by law, the levy
had to be removed from Shuler's property because McGarity had failed to contest the
claim of exemption. Nowhere did Curry state that McGarity's rights could not attach to
Shuler's property because there was no judgment lien.
31. In the weeks leading up to the sheriff s sale, Roger Shuler began experiencing problems on his job at DAB, where he had worked for 19 years. He was wrongfully accused of unprofessional conduct, and not long after Shuler filed a formal grievance against his supervisor, he was placed on administrative leave=contrary to clear DAB policy. The university took this action on May 7, 2008, just five days prior to the scheduled sheriff s
.- - --srue--and-ifappearslliis was-done -Decause-tlie-Sliufers-ierusecfiomeefWifu BilrSwatek
to "work something out." On May 19,2008, one week after the sheriffs sale and one week after it was clear the Shulers were not going to cave in to threats on their property, Roger Shuler was unlawfully terminated from his job. He remains unemployed as this case is filed.
32. As a result ofthe unlawful auction, a sheriffs deed now is recorded in Shelby County Probate Court, falsely asserting that Bill Swatek has legal rights to the Shulers' property. The Shulers now frequently receive mail at their home, addressed to William E. Swatek, as if he is the owner of the property.
CAUSES OF ACTION
VIOLATION OF EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
(ASSERTED VIA 42 U.S. CODE 1983)
33. Plaintiffs re-allege paragraphs 1-32 above, as if set out in full herein. Defendants Swatek,
McGarity, Curry, Caudill, and Harrington deprived the Shulers of the full rights of their
property by asserting rights that they did not lawfully have and/or failing to follow clear
procedural, statutory, and case law, as set out above.
34. At all times material herein, defendants knew, or should have known, that their actions
..... ~---were~UiilaWful. But they took no steps to ensure that the Shulers were provided equal
protection of the law.
35. The defendants, individually and in concert, demonstrated malice and/or deliberate
indifference toward the Shulers' constitutional rights to receive equal protection of the
36. As a direct and proximate result, the Shulers suffered loss of full rights to property they
have owned, maintained, and improved since 1990. They suffered humiliation and
embarrassment, as well as past and future physical and mental pain and injury, mental
anguish, emotional distress, past and future enjoyment of life.
37. The Shulers have and will continue to suffer in an attempt to heal the emotional and
financial damage inflicted upon them by these terroristic efforts to unlawfully seize their
CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS
(ASSERTED VIA 42 U.S. CODE 1985[3))
38. Plaintiffs re-allege paragraphs 1-37 above, as if set out in full herein.
39. Based on information and belief, defendants Swatek, McGarity, Curry, Caudill, and Harrington conspired to deprive the Shulers of equal protection of the law.
40. Said conspiracy was conducted maliciously, willfully, and with reckless disregard for the Shulers' constitutional rights.
41. Plaintiffs now are suffering, and will continue to suffer irreparable injury from
COUNT THREE DEFAMATION
(ASSERTED VIA ALABAMA STATE LAW)
42. Plaintiffs re-allege paragraphs 1-41 above, as if set out in full herein.
43. Defendants Swatek, McGarity, Curry, Caudill, and Harrington caused false statements to be published about Roger Shuler, causing damage to his reputation.
44. Defendants repeatedly caused a notice to run in the Shelby County Reporter and placed on public bulletin boards, indicating that Mike McGarity had legal rights to Shuler's property. In fact, McGarity had no such rights because the judgment in question was void under the law, as set out above.
45. Defendants caused a sheriff's deed to be recorded in the Shelby County Probate Court, and the deed is available for public viewing. The deed falsely states that William E. Swatek holds legal rights to Roger Shuler's property.
46. Defendants maliciously and willfully caused defamatory statements to be published about Roger Shuler.
47. As a result of defendants' unlawful actions, Shuler has suffered mental anguish and suffering, as well as impairment of reputation and standing in the community, and personal humiliation.
48. Defendants acted with malice, knowing the statements in question were false, and this
entitles Shuler to punitive damages for the pain and suffering he has experienced due to ---------------------~-t.fiepuohcation ofaefamatory material about hiID.---------------------------------------------- ----
COUNT FOUR CONVERSION
(ASSERTED VIA ALABAMA STATE LAW)
49. Plaintiffs re-allege paragraphs 1-48, as if set out in full herein.
50. Defendants Swatek and McGarity have wrongfully taken the Shulers' property, interfered with the Shuler's rights to their own property, and illegally assumed ownership.
51. Defendants acted with legal malice, willfulness, insult, and other aggravating circumstances that entitle the Shulers to punitive damages.
ABUSE OF PROCESS (ASSERTED VIA ALABAMA STATE LAW)
52. Plaintiffs re-allege paragraphs 1-51, as if set out in full herein.
53. Defendants Swatek and McGarity caused legal process to be issued against Roger Shuler
that was improper in the regular conduct of the proceeding.
54. Defendants Swatek and McGarity caused legal process to be issued for an ulterior
55. Based on information and belief, the ulterior motive had to do with Roger Shuler's job at
UAB, his reporting on the blog Legal Schnauzer, and his experiences with unethical debt
collectors-as set out above.
56. Defendants Swatek and McGarity acted with malice and without probable cause, and
Roger Shuler is entitled to compensatory and punitive damages.
ASSAULT AND BATTERY
(ASSERTED VIA ALABAMA STATE LAW)
57. Plaintiffs re-allege paragraphs 1-56, as if set out in full herein.
58. Defendant McGarity touched Roger Shuler in rudeness and anger as set out above,
constituting assault and battery under Alabama law.
59. Roger Shuler suffered physical injuries and mental anguish and is entitled to
compensatory and punitive damages. The Shulers' mental anguish has been heightened
because McGarity has a history of violent and unlawful behavior, as evidenced by his
lengthy criminal record.
COUNT SEVEN NEGLIGENCE
(ASSERTED VIA ALABAMA STATE LAW)
60. Plaintiffs re-allege paragraphs 1-59, as if set out in full herein.
----61-:-UetenaantAIabama Sfate-BiIThas -a-duty to poIicethecoilductofltsmember attomeis~-------
62. Defendant Alabama State Bar has a disciplinary file on attorney William E. Swatek that is roughly one-foot thick and goes back more than 30 years. This file includes information that Swatek has been disciplined three times by the Alabama State Bar, including a suspension of his license for acts of dishonesty, misrepresentation, fraud, and deceit. This also includes information that Swatek had been tried for perjury in a criminal case in the early 1980s.
63. Roger Shuler provided the Alabama State Bar with information that Swatek had committed new violations of professional conduct, including lying in an official proceeding and filing fraudulent documents in court. The Alabama State Bar did not even investigate the complaint.
64. Swatek, apparently thinking he could get away with most anything, initiated an unlawful auction of the Shulers' property.
65. Defendant Alabama State Bar breached its duty to police member attorneys, causing injuries to plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Roger and Carol Shuler request of this Court the following
monetary and equitable relief against defendants:
A. A declaratory judgment holding that actions of the Defendants described herein
violated the Plaintiffs' rights as secured by the Fourteenth Amendment to the
B. A permanent injunction enjoining the Defendants, their agents, successors,
employees, attomeys.-and those acting in concert with the defendants at the
defendants request from continuing to violate the Equal Protection Clause of the
C. An order of compensatory and punitive damages.
D. An order to make the Plaintiffs whole by removing the unlawful sheriffs deed from
the Shulers' property, restoring the Shulers' full rights to their property and removing
any rights claimed by others, granting an award of costs, attorney fees, and expenses.
E. Such other legal and equitable relief as this Court may deem necessary or proper.
Respectfully submitted, this /O+h day of ~ 2010.
Roger Shuler, Pro Se
Carol Shuler, Pro Se
PLAINTIFFS DEMAND A TRIAL BY STRUCK JURY ON ALL ISSUES TRIABLE BY
A JURY UNDER FEDERAL LAW
Ro-gerana CaroTSIitiler--- -- -------- ---
5204 Logan Drive
Birmingham, Alabama 35242
STATEl\1ENT OF VERIFICATION
I have read the above complaint and it is correct to the best of my knowledge.
Roger Shuler, Pro Se
Carol Shuler Pro Se
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