IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OH10

EASTERN DIVISION

JOSEPH MONTELON,
685 Sterling Road
Wickliffe, OH 44092,

Plaintiff,
JUDGE

THE CITY OF LORAIN, 1

d o Pat Riley, Law Director 1
200 West Erie Avenue 1
Lorain, OH 44052, 1
1
1 COMPLAINT
1
CHIEF CEL RIVERA, (JURY DEMAND ENDORSED HEREON)
torain Police Department 1
100 West Erie Avenue 1
Lorain, OH 44052, 1
)
1
1
CAPTAIN RICHARD RESENDEZ, 1
Lorain County Sheriffs Office 1
9896 Murray Ridge Road 1
Elyria, OH 44035, 1
1
1
1
DETECTIVE A. J. MATHEWSON,
Lorain Police Department
100 West Erie Avenue
Lorain, OH 44052,

Defendants.

I. INTRODUCTION

?. This cause of action arose from the misconduct of Defendants Lorain Police

Chief Cel Rivera, Lorain Sheriff Captain Richard Resendez, Lorain Police Detective A.J.

Mathewson, who under the color of law, violated the federal constitutional rights of the

Plaintiff, Joseph Montelon. Under the authority, direction, and supervision of Defendant

Chief Rivera, Defendant Mathewson mislead the Court in an affidavit he filed, seeking a

search warrant for Mr. Montelon's home. The affidavit contained false statements made

knowingly, intentionally, or with a reckless disregard for the truth. Defendant Mathewson

based his affidavit on two false criminal charges and misstated the law in order to obtain

the search warrant. The search was a deceitful attempt to discover the author of

anonymous letters that were highly critical of the Lorain Police Department and Chief

Rivera and others as well as to silence a critic. Mr. Montelon's home was illegally searched

by officers of the Lorain Police Department and torain Sheriff Captain Richard Resendez,

who was the subject of some of the anonymous letters and had no reason to be present

at the search. Mr. Montelon's property has been illegally held for two years. The Plaintiff

seeks compensatory and punitive damages against the Defendants for their misconduct

under the First, Fourth, and FourteenthAmendments. The Plaintiff also seeks declaratory

and injunctive relief, attorneys fees, costs and other relief.

 11. JURISDICTION

2. The jurisdiction of the Court is invoked pursuant to 28 U.S.C. §§I331 and

1343. This is a police misconduct case brought under 42 U.S.C.s1983, seeking money
damages.

Ill. VENUE

3. This Court is the proper venue under 28 U.S.C. §1391(b), this being the

District in which the events giving rise to the Plaintiffs claims occurred.

IV. PARTIES

4. Plaintiff Joseph Montelon is a citizen of the United States and resident of

Wickliffe, Ohio.

5. Defendant City of Lorain is a municipal corporation, a political subdivision

under Chapter 2744, Ohio Revised Code, and was at all times relevant the employer of

Defendant Chief Rivera and Defendant Detective Mathewson.

6. Defendant Rivera was at all times relevant Chief of the Lorain City Police

Department. He acted under the color of law and is sued in his official and individual

capacities.

7. Defendant Mathewsonwas at all times relevant a Detective of the Lorain City

Police Department. He acted under the color of law and is sued in his official and

individual capacities.

8. Defendant Resendez was at all times relevant a Captain of the torain

County Sheriffs Department. He was a former officer of Lorain Police Department. He

acted under the color of law and is sued in his official and individual capacities.
 V. FACTS

9. Between 2004 and 2008, a series of critical letters alleging misconduct and

corruption in the Lorain County Police Department, especially by Chief Rivera, were sent

to various media outlets and public officials. The author of the letters has never been

determined.

10. The letters were sarcastic, accusatory, and disparaging, but nowhere did the

author write anything that could be construed as threatening.

1 Based solely on an "anonymous tip" Defendant Lorain Police Detective A.J.

Mathewson suspected the author was former Lorain police officer,

Joseph Montelon.

12. Defendant Chief Rivera also believed that Mr. Montelonwas the anonymous

author and responsible for an investigation by the Department of Justice into the Lorain

Police Department and their use of force. As a main subject of the anonymous letters'

criticism, Chief Rivera had a personal vendetta against the author. It is believed that

Rivera, in his capacity as the highest policy maker of the Lorain Police Department,

directed Defendant Mathewson to swear an affidavit against Mr. Montelon.

13. DefendantMathewsonswore an affidavit requestinga search warrant for Mr.

Montelon's home. Defendant Mathewson's affidavit sought a search warrant to investigate

alleged violations of R.C. 55 2903.21 and 2903.2 11, Aggravated Menacing and Menacing

by Stalking. These statutes were used disingenuously as a pretext in order to obtain the

search warrant.

14. The only support offered to corroboratethe anonymous tip was inconclusive

information that was collected from several trash pulls. Defendant Mathewson did not state

whether or not the trash pulls were conducted illegally on private property.

4
 15. The affidavit provides no information about the informant, nor the alleged

source of the informant's information, nor any underlying circumstances, which lead the

informant to believe relevant evidence might be discovered, nor any underlying

circumstances from which Defendant Mathewson concluded the informant was credible

or the information was reliable.

j6. The affidavit does not allege any actual harm. The affidavitonly alleged that

the letters were "meant to cause Rivera emotional distress."

17. Defendant Mathewson knowingly, intentionally, or with reckless disregard

for the truth misled the court and included a false statement in his affidavit. He misstated

the law in his amdavit and did not properly allege elements of either offense or any conduct

that would constitute a crime.

18. Based on the affidavit, a judge of the Lake County Court of Common Pleas

issued a search warrant for Mr. Montelon's home.

19. On August 28, 2008, officers of Lorain and Wickliffe Police Departments,

Lorain County Sheriff Captain Resendez, and a FBI special agent unconstitutionally

searched and indiscriminatelyransacked Mr. Montelon's home, and confiscated numerous

items of his personal property.

20. Lorain County Sheriff Captain Richard Resendez had no reason to be at the

search, and had a major conflict of interest. He was the subject of some of the letters'

criticism. While conducting the search, he questioned Mr. Montelon stating, "Why did you

attack me in those letters?," and "You're going to have a nice life after we get through with

you."
 21. The officers unconstitutionallyseized 26 items from Mr. Montelon, including

various documents, personal computers, guns, and electronic storage devices.

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VI. First Claim Fourth Amendment Unconstitutional Search and Seizure

22. Plaintiff incorporates by reference each and every allegation of Paragraphs

1 through 2 1 above, as if those allegations were fully rewritten.

23. Affiant, Defendant Mathewson did not act in good faith because he did not

harbor any objectively reasonable belief in the existenoe of probable cause.

24. Defendant Mathewsonknowingly, intentionally, or with reckless disregard for

the truth included a false statement in his affidavit.

25. Defendant Mathewson did not allege any facts in his affidavit that indicate

any crime at all occurred. He misstated the taw in his affidavit and did not properly allege

elements of either offense or any conduct that would constitute a crime. Intent to cause

"emotional distressn, as he alleged, is not an element of either offense alleged.

26. Defendant Resendez and the other officers under Chief Rivera's direction

who searched the home of Mr. Montelon did not manifest objective good faith in relying on

a warrant based on an affidavit so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.

27. The search and seizure were conducted for a deceitFul purpose to silence a

suspected critic and without probable cause.

28. The said acts of the Defendants violated Mr. Montelon's Fourth Amendment

right to be free from illegal search and seizure.

 -
VII. Second Claim Retaliation i n Violation of the First Amendment

29. Plaintiff incorporates by reference each and every allegation of Paragraphs

4 through 28 above, as if those aliegations were fully rewritten.

30. While the Defendants claimed to not know who wrote the letters,the Plaintiff

was the suspected author. As a result of the Defendants' suspicion, Defendant Mathewson

swore an affidavit, which misled the issuing Court and caused an unconstitutional search

of Mr. Montelon's home.

31. The said acts of the Defendants were motivated to silence and punish a

perceived critic for the purpose of thwarting and denying freedom of speech under the First

Amendment to the United States Constitution.

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VIII. Third Claim Munici~alLiability

32. Plaintiff incorporates by reference each and every allegation of Paragraphs

1 through 31 above, as if those allegations were fully rewritten.

33. The City of Lorain is liable pursuant to 42 U.S.C. $1983 because Defendant

Chief Rivera is the chief policy maker for the City of Lorain Police Department, acting on

behalf of the City of Lorain. His conduct constituted official policy.

34. In addition, the City of Lorain has inadequate training and policy with regard

to the safeguarding of First Amendment rights, as well as the implementation of protocols

in obtaining search warrants.

tX. DAMAGES

35. Plaintiff incorporates by reference each and every allegation of Paragraphs

1 through 34 above, as if those allegations were fully rewritten.

 36. The Defendants' conduct caused Plaintiff economic harm and severe

emotional distress. Mr. Montelon's homewas invaded and his privacy and security violated.

He has been deprived of his rightful property for two years.

37. The Defendants directly and proximately caused the Plaintiffs damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against the Defendants, jointly and

severally, for:

(A) Compensatory and consequential damages for all the injuries identified in

an amount to be determined by the Court in excess of the Court's jurisdictional amount;

(B) Punitive damages in an amount to be determined at trial for the

Defendants' wrongful conduct;

(C) Injunctive relief including but not limited to:

(1) preventing the Defendants and their agents from further

harassment of the Plaintiff in his exercise of his First Amendment

rights; and

(2) requiring corrective policies and training measures to prevent future

violations of Plaintiffs constitutional rights as alleged herein;

(D) Attorney fees and costs of this action; and

(E) Any and all other relief that this Court deems equitable, necessary and

just.
A JURY IS REQUESTED TO HEAR THIS MATTER.

Respectfully submitted,

FRIEDMAN & GILBERT

TERRY d. GILBERT (0021948)

Attorney for Plaintiff
1370 Ontario Street, Suite 600
Cleveland, OH 441 13-1752
Telephone: (216) 24 1-1430
Facsimile: (216) 62 1- 0427
Email: tgiIbert@f-glaw.com