COMPLAINT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
SMITH V MCDOUGALL
DOCKET / CHRONOLOGICAL FILE
COMPLAINT

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CASE NO. 99-385-CIV-FTM-21

ROBERT SMITH and RAY SIENKIEWICZ
Plaintiffs,
v.
JOHN McDOUGALL, individually and as SHERIFF OF LEE COUNTY, FLORIDA, et al.,
Defendants.

COMPLAINT FOR DAMAGES, PERMANENT INJUNCTION, AND OTHER RELIEF UNDER FREEDOM OF ACCESS TO CLINIC ENTRANCES (F.A.C.E.) ACT INCLUDING A DEMAND FOR JURY TRIAL

Plaintiffs, Robert Smith and Ray Sienkiewicz, by and through their undersigned attorney, hereby sue the Defendants, John McDougall, individually and as Sheriff of Lee County, Florida, et al., saying:

JURISDICTION

1. This is a civil action seeking compensatory damages, and other relief for violation of that Act of Congress known as Freedom of Access to Clinic Entrances Act, 18 U.S.C. §248, hereinafter called F.A.C.E. This Court has jurisdiction over this action because this is a civil action arising under the laws of the United States, according to 28 U.S.C. §1331, and also under 28 U.S.C. §1343 (a)(4), which confers original jurisdiction on district courts in civil actions to recover damages under an Act of Congress providing for the protection of civil rights. This action is authorized by U.S.C. §248(c) (F.A.C.E.).

VENUE

2. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. §1391(b), because the claims arose in this District and also because the named Defendant resides in this District.

PARTIES

3. Plaintiff, Robert Smith, is, and at all times material in this Complaint, has been a citizen of the United States and a resident of Lee County, Florida.

4. Plaintiff., Ray Sienkiewicz, is, and at all times material in this Complaint, has been a citizen of the United States and a resident of Lee County, Florida.

5. Defendant, John McDougall, is, and at all times material in this Complaint, the sheriff of Lee County, Florida and a resident of Lee County, Florida,

6, John Doe and Jane Doe are as yet unidentified defendants who procured directly or indirectly the violation of F.A.C.E herein described and whose true identities will be determined al soon as possible; these persons or person are the source of pressure on the named Defendant.

BACKGROUND

7. Some of the people who know that elective abortion is wrong have expressed their opinions by methods which did little to help the real victims of this brutal practice. Fortunately, there have been brave people who reach out to the mothers and fathers of unborn children at abortion clinics, offering love and help, rather than debate or condemnation. These are the individuals sometimes called "sidewalk" counselors, who are providers of reproductive health services as defined and protected by the Federal Civil Rights Act called Freedom of Access to Clinic Entrances.

8. "Sidewalk" counselors in front of abortion clinic entrances for many years suffered varying forms of abuse. However, since May of 1994, when F.A.C.E. was enacted such abuse is prohibited by Federal law.

9. Historically, F.A.C.E. has been portrayed by the media, and therefore perceived by the general public, as a law passed to protect only abortion clinics. This is only part of the story. F.A.C.E. protects any provider of reproductive health services whether the services are providing abortions or providing alternatives to abortion, regardless of their viewpoints on this topic.

GENERAL ALLEGATIONS

10. Plaintiffs, Robert Smith and Ray Sienkiewicz, are providers of reproductive health services as defined by F.A.C.E. and have been such at all times material to this Complaint.

11. Southwest Florida Women's Clinic is a business whose address is 3979 Northside Circle, N. Ft. Myers, Florida within Lee County, Florida. This business is located on privately owned real estate consisting of a portion ora strip shopping center with a parking tot and intervening sidewalk. This business constitutes a reproductive health service facility according to 18 §248 (e)(1) (F.A.C.E.) where abortions are performed. There is a private road leading to the facility. There is no place to carry on a private, non-threatening, counseling conversation with persons approaching or leaving the facility except on the sidewalk and parking lot. There is no other place to hand out the written referral information except on the sidewalk and parking lot. Under the constitutions and laws of Florida and the United States, Plaintiffs have the legal right to utilize a reasonable portion of the sidewalk and parking lot during business operations.

12. On July 13, 1999 and at all times thereafter when the facility was open for business, the exact number of which will be determined hereafter, Plaintiffs, Robert Smith and Ray Sienkiewicz were inside or sought to be inside the boundary of said facility, involved in providing or seeking to provide reproductive health services as defined in F.A.C.E., such as: counseling of women and men as to the spiritual. moral, medical, physical and psychological health aspects of adoption, and abortion; the nature of this particular facility; the problems and risks associated with this particular facility; determining the needs of the individuals approaching or leaving the facility; and, offering written and verbal referral information to other related care-givers.

13. Because they were seeking to be so' engaged in the facility, Robert Smith and Ray Sienkiewicz were unlawfully threatened and intimidated and so prevented from providing reproductive health services as defined in F.A.C.E. in the Southwest Florida Women's Clinic facility by the Defendant, John McDougall, who utilized his deputies and equipment to commit such violations of F.A.C.E.

14. Defendant, John McDougall, intentionally and unlawfully caused these threats and intimidation by ordering his deputies to threaten Plaintiffs with physical removal from the facility.

15. Plaintiffs, Robert Smith and Ray Sienkiewicz reasonably feared and continue to fear that Defendant, John McDougall, intended and continues intending to obstruct them physically or harm them in the event that they entered into the facility in order to perform reproductive health services as defined by F.A.C.E.

16. Plaintiffs have observed that they were singled out for threats by the deputies of Defendant John McDougall because they are F.A.C.E. - protected counselors.

17. By this program of intimidation, Defendant John McDougall intentionally violated the civil rights of Plaintiffs, Robert Smith and Ray Sienkiewiez, under F.A.C.E.

18. Defendants Jane Doe and John Doe, being those as yet unidentified persons who procured, directly or indirectly, the unlawful intimidation of Plaintiffs, Robert Smith and Ray Sienkiewicz, are liable together with Defendant John McDougall for the violations set forth herein.

COUNTS

19. Defendants have commenced a program of intimidation consisting of numerous violations of F.A.C.E. starting on July 13, 1999 and continuing to the present time. It is expected that more such violations will occur in the future. Plaintiffs estimate that approximately twenty-four violations per week are occurring.

20. A violation of 18 U.S.C. §248 (F.A.C.E.) occurs each time that Plaintiffs are prevented by Defendants from offering reproductive health services such as counseling or the providing of referral information to a person in need of such advice or information at this particular facility.

21. Plaintiffs, Robert Smith and Ray Sienkiewicz, each elect to receive statutory damages of $5,000,00 per violation of F.A.C.E. from each of the Defendants and punitive damages of $25,000.00 per violation, after the first violation for which the punitive damages should be $15,000.00, from each of the Defendants.

22. Plaintiffs require a permanent injunction to be entered against all Defendants and those in any way acting in concert with them, directly or indirectly, prohibiting future violations of F.A.C.E.

23. Plaintiffs will incur a reasonable fee for their attorney in the prosecution of this claim and will incur costs and fees, including expert witness' fees, all of which should be charged to the Defendants.

DEMAND FOR JURY TRIAL

24. Plaintiffs hereby demand trial by jury of all issues so triable.

WHEREFORE, Plaintiffs, Robert Smith and Ray Sienkiewicz, pray that this Honorable Court will accept jurisdiction of this cause and, upon finding for the Plaintiffs, enter final judgment against the Defendants for violations of 18 U.S.C. §248 (F.A.C.E.) thus awarding Plaintiff statutory damages, punitive damages, a permanent injunction, interest, the costs of this action including expert witness fees and a reasonable attorney's fee, together with all other relief as the Court deems just.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar No.: 0097823
Attorney for Plaintiffs