Village of Marvin Second Lawsuit

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION
Case No.
CHRISTOPHER P. SMITH,
Plaintiff,
v.
JOSEPH POLLINO, in his individual

capacity and in his capacity as Mayor of the
Village of Marvin, ROBERT MARCOLESE,
in his individual capacity, JAMIE LEIN, in
his individual capacity, MICHAEL COMPLAINT
LAVELLE, in his individual capacity and in
his capacity as a member of the Village of [JURY TRIAL DEMANDED]
Marvin Planning Board, JON JONES, in his
individual capacity and in his capacity as the
Chair of the Village of Marvin Planning
Board, and THE VILLAGE OF MARVIN,
Defendants.
Introduction
1. Open, free, and fair elections are a cornerstone of our American democracy, and,
for that reason, our laws, including our federal Constitution and the Constitution of the State of
North Carolina as well as state and federal election law, safeguard our rights to free speech,
assembly, due process, and participation in our political processes.
2. Defendants Joseph Pollino—the Mayor of the Village of Marvin, North Carolina
(the “Village”)—and Robert Marcolese and Jamie Lein—two newly-elected members of the
Village Council—in concert with Defendants Michael Lavelle, Jon Jones, and others deprived
Plaintiff Christopher P. Smith, another mayoral candidate, of those rights. On election eve,
Defendants Pollino, Marcolese, Lein, and Lavelle cornered Plaintiff outside of Village Hall in an
Case 3:19-cv-00639-GCM Document 1 Filed 11/22/19 Page 1 of 23

effort to publicly intimidate, shame, embarrass, and terrorize Plaintiff, who, during and after the
incident, became reasonably afraid for his personal safety. On Election Day, Defendant Jones
drove his SUV at Plaintiff, forcing Plaintiff to move from where he stood greeting voters in an
elementary school parking lot to avoid being struck. These coordinated efforts all formed part of
Defendants’ scheme to force Plaintiff to withdraw his candidacy and renounce his support for
Mary Shkut, a political opponent of Defendant Pollino and, therefore, persona non grata in the
estimation of Defendants Lavelle, Jones, Lein, and Marcolese.
3. Such behavior violates the First and Fourteenth Amendments to the U.S.
Constitution, the North Carolina Constitution’s guarantee of free speech and free and open
elections, state and federal election laws, and state common law. This action for monetary and
injunctive relief follows.
Parties
4. Plaintiff is a citizen and resident of Union County, North Carolina.
5. Defendant Joseph Pollino is a citizen and resident of Union County, North Carolina.
At all times relevant to this action, Defendant Pollino has been the Mayor of the Village of Marvin.
6. Defendant Robert Marcolese is a citizen and resident of Union County, North
Carolina. He was elected in November 2019 to a four-year term as Village Councilmember for
the Village of Marvin.
7. Defendant Jamie Lein is a citizen and resident of Union County, North Carolina.
He was elected in November 2019 to a four-year term as Village Councilmember for the Village
of Marvin.
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8. Defendant Michael Lavelle is a citizen and resident of Union County, North
Carolina. At all times relevant to this action, Defendant Lavelle has been an appointed member of
the Planning Board for the Village of Marvin.
9. Defendant Jon Jones is a citizen and resident of Union County, North Carolina. At
all times relevant to this action, Defendant Jones has been an appointed member and the chair of
the Planning Board for the Village of Marvin.
10. Defendant Village is a North Carolina municipal corporation situated in Union
County, North Carolina.
Jurisdiction & Venue
11. The Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C.
§ 1331 as the action involves claims arising under federal law.
12. The Court has jurisdiction over the Defendants to this action pursuant to N.C. Gen.
Stat. § 1-75.1 et seq. and consistent with the requirements of due process.
13. Venue lies in this Court pursuant to 28 U.S.C. § 1391(b).
Facts
14. Plaintiff lives in Marvin, North Carolina, with his wife and children.
15. About one year ago, Plaintiff decided that he would run for mayor in Marvin’s next
mayoral election, the November 2019 general election.
16. The November 2019 general election involved three elected positions with Village
government: the office of mayor, and two seats on Village Council.
17. After Plaintiff decided to run for mayor, Plaintiff met with Defendant Pollino, the
person then serving as mayor, to declare his intentions and to seek Defendant Pollino’s advice and
feedback.
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18. At that meeting, Defendant Pollino told Plaintiff that he had decided not to run for
reelection.
19. In the November 2019 general election, Plaintiff ran for mayor, and Defendants
Marcolese and Lein ran for the two open Council seats.
20. Defendant Pollino supported Defendants Marcolese and Lein in their campaign for
election to Village Council.
21. Defendant Lavelle supported Defendants Marcolese and Lein in their campaign for
22. Defendant Jones supported Defendants Marcolese and Lein in their campaign for
23. After he learned that they intended to run for the open Council seats, Plaintiff met
on several occasions with Defendants Marcolese and Lein.
24. During their meetings, Defendants Marcolese and Lein would frequently express
their distaste for and distrust of Mary Shkut, a sitting Village Councilmember, and their belief that
Mary Shkut intended to run a write-in campaign for election to Village Council.
25. At the time of his meetings with Defendants Marcolese and Lein, Mary Shkut had
not registered any notice of candidacy or otherwise expressed any intent, to Plaintiff’s knowledge,
to run for reelection to Village Council.
26. At the time of his meetings with Defendants Marcolese and Lein, Plaintiff had no
knowledge of any plan on the part of Mary Shkut to attempt to win reelection by way of any write-
in campaign.
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27. As part of their meetings, Plaintiff and Defendants Marcolese and Lein would
frequently discuss campaign strategy, including the costs of campaign signs or other political
advertisements.
28. Although Plaintiff and Defendants Marcolese and Lein occasionally discussed
sharing some of the costs associated with the creation and distribution of political signs or
advertisements, they ultimately decided that they would each campaign separately and separately
carry the costs of campaign signs and advertisements.
29. Finally, as part of their meetings, Plaintiff and Defendants Marcolese and Lein
would discuss participating in local media interviews.
30. Defendants Marcolese and Lein did not want to participate in media interviews
concerning their candidacy prior to the November 2019 general election.
31. Defendants Marcolese and Lein discouraged Plaintiff from participating in media
interviews concerning his candidacy prior to the November 2019 general election.
32. Eventually, Plaintiff decided to stop meeting with Defendants Marcolese and Lein
to discuss campaign strategy.
33. Plaintiff made his decision to stop meeting with Defendants Marcolese and Lein in
part because he found their apparent obsession with Mary Shkut disheartening.
34. In fact, Defendants Marcolese and Lein’s apparent obsession with Mary Shkut led
Plaintiff to want to speak with Mary Shkut, which he did.
35. Plaintiff knew of Mary Shkut because of her involvement with Village Council, but
otherwise had no substantive relationship with Mary Shkut.
36. After speaking with Mary Shkut, Plaintiff became convinced that Mary Shkut was
an asset to the Village, and Plaintiff encouraged Mary Shkut to consider a write-in campaign.
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Shkut Announces Her Candidacy and the Mayor Reacts
37. In late October 2019, Mary Shkut registered a notice of candidacy with the Union
County Board of Elections to run for reelection to the Village Council.
38. After she announced her candidacy, Plaintiff provided Mary Shkut with a letter of
endorsement.
39. The Sunday after Mary Shkut published Plaintiff’s letter to her website, Plaintiff
received two separate calls from Kimberly Vandenberg, a sitting Councilmember, and her
husband, Mike Vandenberg.
40. During the calls, the Vandenbergs expressed their disbelief that Plaintiff would
support Mary Shkut.
41. During the calls, the Vandenbergs told Plaintiff that they believed that Mary Shkut
must be bribing or blackmailing Plaintiff in order to obtain his support.
42. During the calls, the Vandenbergs, using foul and explicit language, urged Plaintiff
to withdraw his support for Mary Shkut.
43. That same Sunday at 7:13 PM, Plaintiff received a call from Defendant Pollino.
44. Plaintiff did not answer Defendant Pollino’s 7:13 PM call because Plaintiff was on
the phone with someone else, but when Defendant Pollino called again at 8:02 PM, Plaintiff
answered.
45. During the call, Defendant Pollino—the Village Mayor—told Plaintiff—a
candidate for the office of Village Mayor—to rescind his support for Mary Shkut.
46. During the same call, Defendant Pollino told Plaintiff that if Plaintiff did not rescind
his support for Mary Shkut, that Defendant Pollino would conduct a write-in campaign for
reelection.
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47. During the same call, Defendant Pollino told Plaintiff that Defendant Pollino,
through conversations with Village employees, had learned that several Village employees would
quit if Mary Shkut were elected.
48. During the same call, Defendant Pollino demanded that Plaintiff withdraw his
support for Mary Shkut because, in Defendant Pollino’s words, careers, livelihoods, and families
were at stake.
49. On multiple occasions during the same call, Defendant Pollino demanded to know
what Mary Shkut was using to blackmail or bribe Plaintiff.
50. Finally, during the same call, Defendant Pollino threatened to fabricate a personal
scandal involving Plaintiff if Plaintiff would not rescind his support of Mary Shkut. Specifically,
Defendant Pollino insinuated such threat by saying, “You need to give it up, because . . . maybe
there was a woman . . . maybe you were at the club and you were both drinking and flirting . . . or
maybe you were alone in a room with her.”
51. Plaintiff then terminated the call.
52. The call with Defendant Pollino left Plaintiff intimidated and shocked.
53. Defendant Pollino intended the content of his communications during the call to
intimidate and shock Plaintiff.
54. The next morning, the Sunday before the election, Plaintiff saw campaign signs
along the road that read “Re-elect Joe Pollino” and “Write-in Joe Pollino.”
The Ambush at Village Hall
55. On Monday, November 4, 2019, Plaintiff—a volunteer member of the Village
Planning Board—received the following text message from Defendant Lavelle, another volunteer
member of the Village Planning Board:
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56. The Village Planning Board meeting started at 6:30 PM.
57. Plaintiff arrived at the Village Planning Board meeting at approximately 7:20 PM.
58. When Plaintiff arrived, he noticed that Defendants Lein and Marcolese, neither of
whom had any business before the Village Planning Board, were present.
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59. A little more than a half hour later, Defendant Pollino arrived at the Village
Planning Board meeting.
60. Defendant Pollino did not have any business before the Village Planning Board.
61. Defendants Marcolese, Lein, and Pollino attended the Village Planning Board
meeting as part of a coordinated plan to confront Plaintiff after the meeting.
62. Defendant Lavelle texted Plaintiff to confirm Plaintiff’s plans to attend the Village
Planning Board meeting as part of a coordinated plan with Defendants Pollino, Marcolese, and
Lein to confront Plaintiff after the meeting.
63. When the meeting concluded, Plaintiff walked outside of Village Hall behind
Defendants Lavelle and Lein.
64. Defendants Marcolese and Pollino followed Plaintiff from behind.
65. As Plaintiff walked down the narrow ramp exiting Village Hall, Defendants Lein
and Lavelle started yelling epithets and shouting accusations at Plaintiff.
66. Plaintiff, a disabled veteran with an ambulatory handicap, grew fearful of the
possibility of physical harm as a result of Defendants Lein and Lavelle’s aggressive behavior in
such a confined space.
67. When Plaintiff got outside to the parking lot, Defendants Pollino, Marcolese, Lein,
and Lavelle surrounded Plaintiff and impeded his path to his vehicle, such that Plaintiff was
trapped between the Defendants, a minivan, and a flagpole.
68. Immediately after they had him surrounded, all four men began shouting and
screaming at Plaintiff.
69. During this time,
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a. Defendant Lein began pacing from behind Plaintiff to immediately in front
of Plaintiff, sometimes stopping no more than twelve inches from Plaintiff.
b. Defendant Pollino stood two feet to Plaintiff’s left and slightly behind
Plaintiff.
c. Defendant Lavelle stood in front of Plaintiff to the left, and about two feet
away.
d. Defendant Marcolese stood in front of Plaintiff, behind Defendant Lavelle.
e. Defendant Lein shouted that Plaintiff was a “piece of shit,” that he had “no
morals,” and that he was a liar.
f. Defendant Marcolese shouted that Plaintiff had “betrayed” him and
Defendant Lein.
g. Defendant Pollino shouted several epithets at Plaintiff.
h. Defendant Lein shouted that Plaintiff could not truly be a disabled veteran
because a disabled veteran would not behave the way that Plaintiff had behaved.
i. Plaintiff repeatedly attempted to calm Defendants, telling them that he
could tell that they were upset, and asking them to speak in “indoor voices.” In response,
Defendant Lavelle shouted “We’re outdoors!”
j. Plaintiff also attempted to leave. On one occasion, Plaintiff believed that
there was enough space between himself and Defendant Lein to get through to Plaintiff’s
vehicle. But, Defendant Lein stopped him, returned to directly in front of Plaintiff, and
became wildly enraged, pointing his finger at Plaintiff and ranting frantically about his
recently deceased wife.
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k. As a result, Plaintiff became extremely afraid. He was surrounded. His
freedom of movement was restricted. He feared that if he moved toward his car and
touched one of the Defendants, that they would use that as an excuse to physically assault
Plaintiff.
l. Plaintiff believed, particularly when Defendant Lein was screaming about
his wife, that Plaintiff was in grave danger.
m. Plaintiff apprehended imminent harmful or offensive contact. His belief
that he was in such danger led him to consider things like where to try to position himself
so that he would not strike anything hard or sharp in a fall.
70. Finally, Defendants Lein and Marcolese walked away.
71. Plaintiff, lightheaded and nauseous, made his way to his vehicle, where he tried to
catch his breath and recover so he could drive.
72. At that time, Defendants Pollino and Lavelle approached Plaintiff and told Plaintiff
that Plaintiff should withdraw his candidacy.
73. Defendants Pollino and Lavelle also told Plaintiff that he should rescind his support
for Mary Shkut.
74. Defendants Pollino and Lavelle then left.
75. After Defendants Pollino and Lavelle left, Village Planner Rohit Ammanamanchi
approached Plaintiff.
76. Mr. Ammanamanchi told Plaintiff that he feared that a Village Council with
Plaintiff and Ms. Shkut on it would create a work environment that would be anathema to him or
would result in his termination.
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77. Mr. Ammanamanchi told Plaintiff that he believed that Plaintiff had been
blackmailed or bribed into supporting Mary Shkut.
78. Mr. Ammanamanchi told Plaintiff that Plaintiff had lost the respect of Village staff
and the community, and that, to recover that respect, he would have to withdraw his support for
and publicly disavow Mary Shkut.
79. Plaintiff then left Village Hall, frightened and intimidated.
80. Defendants intended their conduct after the Planning Board meeting to frighten and
intimidate Plaintiff.
81. Defendants intended their conduct after the Planning Board meeting to result in
Plaintiff withdrawing his candidacy for mayor.
82. Defendants intended their conduct after the Planning Board meeting to result in
Plaintiff withdrawing his support for Mary Shkut in her write-in campaign for reelection to Village
Council.
Election Day
83. At 8:30 AM on Election Day, Plaintiff drove to Marvin Elementary, a polling
location, to greet voters.
84. As he approached Marvin Elementary, Plaintiff saw Defendants Lein and Pollino
in the parking lot.
85. Because of what happened the night before, Plaintiff felt sick—instead of pulling
into the parking lot, Plaintiff went home to think things over.
86. When he got home, Plaintiff felt overcome by fear, anxiety, grief, disbelief, and
despair.
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87. Nevertheless, around 10:00 AM, Plaintiff arrived back at Marvin Elementary,
determined to work at least that one site.
88. Throughout the day at the polling site, Defendant Lavelle would purposefully
position himself between Plaintiff and approaching voters, so that Plaintiff would have to step
around Defendant Lavelle to speak to the voters.
89. Plaintiff also learned from voters that a campaign handout that Plaintiff had
originally created and that depicted him, Defendant Marcolese, and Defendant Lein had been
modified by supporters of said Defendants, with their consent and knowledge, so that a stapled
flyer attached to the handout told voters not to vote for Plaintiff or Mary Shkut.
90. The modified campaign handout did not contain any signature on the part of the
person publishing or distributing the modified handout, but Defendants Pollino, Jones, Lavelle,
Lein, and Marcolese, or some combination of them, published and distributed the modified
handout. The modified handout appeared as follows:
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91. The flyer attached to the modified handout appeared as follows:
92. Defendant Lavelle’s interference with Plaintiff’s greeting of voters continued and
grew progressively worse throughout the day.
93. Later, as Plaintiff stood greeting voters in the parking lot, Defendant Jones, a
supporter of Defendants Marcolese, Lein, and Pollino, drove his vehicle in Plaintiff’s direction,
forcing Plaintiff to move for fear of being struck by the vehicle, which was moving at a speed
higher than reasonably safe for the parking lot.
94. When he stopped his vehicle—a large sports-utility vehicle—Defendant Jones
exited the vehicle and claimed to have moved it to that location—an unmarked area of the parking
lot several feet away from any curb or other parking space—so that Kimberly Vandenberg, another
supporter of Defendants Marcolese, Lein, and Pollino, could use it to charge her phone.
95. In fact, Defendant Jones operated his vehicle in such manner to threaten and
intimidate Plaintiff.
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96. Plaintiff apprehended imminent harmful and offensive conduct as a result of
Defendant Jones’s operating his vehicle in such manner.
97. The conduct of these Defendants greatly inhibited Plaintiff in his campaign for
mayor. Such conduct actually and proximately caused Plaintiff to suffer fear, mental and
emotional anguish, and severe emotional distress, and Defendants in fact intended such conduct to
have exactly that affect.
98. Defendant Pollino unofficially won reelection to mayor by eighteen votes.1
First Claim for Relief – 42 U.S.C. § 1983

Violation of the Fourteenth Amendment to the U.S. Constitution
99. Plaintiff incorporates each and every one of the above allegations herein by
reference.
100. Plaintiff’s letter endorsing Mary Shkut for Village Council was political speech
protected by the First Amendment.
101. Plaintiff’s support for Mary Shkut in the course of the November 2019 general
election campaign was political speech protected by the First Amendment.
102. Plaintiff’s campaign for mayor, his interactions with voters, and his
communications with Village officials, Village employees, and voters or potential voters
constituted political speech protected by the First Amendment.
103. Defendants Pollino and Lavelle, acting in concert with Defendants Marcolese and
Lein, retaliated against Plaintiff for the content of said Constitutionally-protected speech, by:
a. Surrounding Plaintiff in the parking lot of Village Hall;
b. Assaulting Plaintiff in the parking lot of Village Hall;
1
Plaintiff has filed a protest concerning the election results with the Union County Board of
Elections.
- 15 -
c. Threatening and intimidating Plaintiff in the parking lot of Village Hall;
d. Demanding that Plaintiff withdraw his candidacy for mayor; and
e. Demanding that Plaintiff withdraw his support for Mary Shkut.
104. Defendant Pollino, in concert with his co-Defendants, further retaliated against
Plaintiff for the content of said Constitutionally-protected speech by threatening to fabricate and
disseminate a story that Plaintiff had engaged in an extra-marital affair if Plaintiff did not agree to
withdraw his candidacy for mayor and his support for Mary Shkut.
105. Defendant Jones, in concert with his co-Defendants, further retaliated against
Plaintiff for the content of said Constitutionally-protected speech by assaulting Plaintiff with his
SUV in the parking lot of Marvin Elementary School on Election Day as Plaintiff attempted to
speak with voters.
106. Defendants would not have engaged in any of the above conduct but for Plaintiff’s
protected expression.
107. The First Amendment prohibits the above-described retaliation.
108. The First Amendment to the U.S. Constitution also prohibits government actors
from forcing an individual, through threats of violence or personal and political reprisals, to adopt
and express viewpoints with which that individual disagrees.
109. Defendants, in the manner described above, each attempted to force Plaintiff to
adopt and express viewpoints with which Plaintiff disagreed by:
a. demanding, on threat of violence and reprisals, that Plaintiff withdraw his
candidacy for mayor and renounce his support for Mary Shkut; and
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b. by circulating, without Plaintiff’s consent or permission, a modified
campaign handout that made it appear that Plaintiff held certain beliefs and viewpoints
concerning Mary Shkut that Plaintiff did not, in fact, hold.
110. Finally, the First Amendment to the U.S. Constitution prohibits government actors
from engaging in prior restraints of free speech.
111. Defendants’ conduct as described above constituted a prior restraint of Plaintiff’s
speech in that it was intended to and did, in fact, cause Plaintiff to refrain from campaigning for
mayor or expressing his support for Mary Shkut. Although Plaintiff did campaign on Election
Day, he spent time away from the polling place and out of public view due to the fear and
intimidation that Defendants inflicted on him.
112. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution
incorporates the First Amendment’s free-speech protections as against the States and their political
subdivisions.
113. Section 1983 of Title 42 of the U.S. Code provides that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State of Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law.”
114. Defendants Pollino, Lavelle, and Jones, at all times relevant hereto, acted under
color of a “statute, ordinance, regulation, custom, or usage” within the meaning of 42 U.S.C. §
1983.
115. It was through and as a direct result of said Defendants’ official powers and duties
that they were able to coordinate and execute the ambush of Plaintiff at Village Hall, and intimidate
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Plaintiff to such degree that he feared the personal and political consequences—as well as the
potential violence—associated with or directly threatened by Defendants’ conduct.
116. Defendants Pollino, Lavelle, and Jones subjected Plaintiff or caused Plaintiff to be
subject to a deprivation of his rights under the First Amendment to the U.S. Constitution, as
incorporated against the States through the Due Process Clause of the Fourteenth Amendment to
the U.S. Constitution, as described above.
117. Specifically, through efforts coordinated with one another and Defendants
Marcolese and Lein, Defendants Pollino, Lavelle, and Jones, as described above, intentionally
threatened, intimidated, harassed, embarrassed, and frightened Plaintiff so as to force Plaintiff to
abandon his candidacy for mayor and his support for Mary Shkut, to publicly announce the end of
his campaign, and to publicly denounce Mary Shkut, all because those Defendants did not agree
with Plaintiff’s support for Mary Shkut.
118. Such actions on the part of Defendants Pollino, Levelle, and Jones constitute the
official acts of the Village.
119. As a direct and proximate result of such deprivation, Plaintiff has suffered damages
in an amount to be proven at trial.
Second Claim for Relief – Direct Claim under the N.C. Constitution
(for Violation of Right to Free Speech)
reference.
121. The N.C. Constitution protects freedom of speech in a manner at least coextensive
with the First Amendment to the U.S. Constitution.
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122. For the reasons stated above, Defendants Pollino, Lavelle, and Jones, acting for and
on behalf of the Village, or in furtherance of Village policy, violated Plaintiff’s right to freedom
of speech.
123. As a direct and proximate result of such action, Plaintiff has suffered damages in
an amount to be proven at trial.
124. Plaintiff has no other means of obtaining any redress for such injury.
Third Claim for Relief – Corum Claim under the N.C. Constitution
(for Violation of Right to Free and Open Elections)
reference.
126. The N.C. Constitution protects Plaintiff’s right to free and open elections.
127. In the course of the November 2019 general election, Defendants engaged in
conduct in violation of, at least, the following state and federal election laws:
a. 52 U.S.C. § 10307(b), which states that “[n]o person, whether acting under
color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any
person to vote or attempt to vote”;
b. N.C. Gen. Stat. § 160A-169(c)(1), which states that “no [municipal]
employee while on duty or in the workplace may use his or her official authority or
influence for the purpose of interfering with or affecting the result of an election or
nomination for political office.”
c. N.C. Gen. Stat. § 163-274(a)(7), which makes it a misdemeanor “[f]or any
person, directly or indirectly, to discharge or threaten to discharge from employment, or
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otherwise intimidate or oppose any legally qualified voter on account of any vote such
voter may cast or consider or intend to cast, or not to cast, or which that voter may have
failed to cast”;
d. N.C. Gen. Stat. § 163-274(a)(8), which makes it a misdemeanor “[f]or any
person to publish in a newspaper or pamphlet or otherwise, any charge derogatory to any
candidate or calculated to affect the candidate’s chances of nomination or election, unless
such publication be signed by the party giving publicity to and being responsible for such
charge”;
e. N.C. Gen. Stat. § 163-274(a)(10), which makes it a misdemeanor “[f]or any
person to give or promise, in return for political support of influence, any political
appointment or support for political office”; and
f. N.C. Gen. Stat. § 163-275(2), which makes it a felony for any person to
“give or promise or request or accept at any time, before or after any such primary or
election, any money, property or other thing of value whatsoever in return for the vote of
any elector.”
128. At a minimum, the N.C. Constitution’s guarantee of free and open elections must
protect against such conduct on the part of public officials and persons acting in concert with public
officials.
129. Defendants have deprived Plaintiff of his right to a free and open election.
130. Plaintiff has suffered damages as an actual and proximate result of such deprivation
in an amount to be determined at trial.
131. Plaintiff has no other means of obtaining any redress for such injury.
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Fourth Claim for Relief – False Imprisonment
reference.
133. After the Planning Board meeting, as described above, Defendants Pollino, Lavelle,
Marcolese, and Lein intentionally surrounded Plaintiff and—unlawfully and against Plaintiff’s
will—detained Plaintiff.
134. As a result of such detention, Plaintiff was deprived of his liberty and forced to
remain where he did not wish to remain.
135. Plaintiff was aware of such restraint and limitation on his freedom of movement at
the time it was occurring.
136. Plaintiff suffered damages as a result of such restraint and limitation on his freedom
of movement.
Fifth Claim for Relief – Assault

(as against Defendant Jones)
reference.
138. When he drove his vehicle at Plaintiff on Election Day in the parking lot of Marvin
Elementary, Defendant Jones by an intentional act or display of force and violence threatened
Plaintiff with imminent bodily injury.
139. Such act or displayed caused Plaintiff to have a reasonable apprehension that
harmful or offensive contact with Plaintiff’s person was imminent.
140. As a direct and proximate result of such act or display, Plaintiff suffered damages
in an amount to be proven at trial.
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Sixth Claim for Relief – Assault
(as against Defendants Pollino, Lavelle, Marcolese, Lein, and the Village)
reference.
142. When they surrounded, berated, humiliated, threatened, and intimidated Plaintiff
after the Planning Board meeting, Defendants Pollino, Lavelle, Marcolese, and Lein by intentional
acts or displays of force and violence threatened Plaintiff with imminent bodily injury.
143. Such acts or displays caused Plaintiff to have a reasonable apprehension that
harmful or offensive contact with Plaintiff’s person was imminent.
144. During such confrontation, Defendants Pollino and Lavelle were acting for and on
behalf of the Village, in furtherance of Village policy, or otherwise as agents of the Village during
and in the course of the performance of their duties as agents of the Village.
145. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered
damages in an amount to be determined at trial.
Waiver of Immunity
reference.
147. For each and every one of those claims against which the Village could otherwise
assert the defense of sovereign immunity, the Village has waived such defense pursuant to N.C.
Gen. Stat. § 160A-485(a) by purchasing liability insurance for such claims or participating in a
local government risk pool.
Prayer for Relief
Wherefore, Plaintiff respectfully prays the Court award him the following relief:
1. Trial by jury as to all matters so triable.
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2. That Plaintiff have and recover damages from Defendants in an amount to be
determined at trial.
3. That the Court enjoin Defendants from any further violations of Plaintiff’s rights
under state or federal law.
4. That Plaintiff have and recover from Defendants pre- and post-judgment interest
on any award of damages in this action to the extent the law allows.
5. That Plaintiff have and recover from Defendants his reasonable attorney’s fees to
the extent the law allows.
6. That the costs of this action be taxed against Defendants.
7. Any other relief the Court deems just and proper.
This 22nd day of November, 2019.
Respectfully submitted,
WEAVER, BENNETT & BLAND, P.A.
By: /s/ Bo Caudill

Bo Caudill
NC Bar No. 45104
Michael David Bland
NC Bar No. 8179
Abbey M. Krysak
NC Bar No. 46281
196 N. Trade St.
Matthews, NC 28105
bcaudill@wbbatty.com
dbland@wbbatty.com
akrysak@wbbatty.com
Tel: (704) 844-1400
Fax: (704) 845-1503
Counsel for Plaintiff
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Village of Marvin Second Lawsuit

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

JOSEPH POLLINO, in his individual

assembly, due process, and participation in our political processes.

2. Defendants Joseph Pollino—the Mayor of the Village of Marvin, North Carolina

Case 3:19-cv-00639-GCM Document 1 Filed 11/22/19 Page 1 of 23

estimation of Defendants Lavelle, Jones, Lein, and Marcolese.

injunctive relief follows.

4. Plaintiff is a citizen and resident of Union County, North Carolina.

6. Defendant Robert Marcolese is a citizen and resident of Union County, North

the Village of Marvin.

the Planning Board for the Village of Marvin.

the Planning Board for the Village of Marvin.

10. Defendant Village is a North Carolina municipal corporation situated in Union

County, North Carolina.

Jurisdiction & Venue

§ 1331 as the action involves claims arising under federal law.

13. Venue lies in this Court pursuant to 28 U.S.C. § 1391(b).

mayoral election, the November 2019 general election.

government: the office of mayor, and two seats on Village Council.

election to Village Council.

election to Village Council.

election to Village Council.

on several occasions with Defendants Marcolese and Lein.

to run for reelection to Village Council.

carry the costs of campaign signs and advertisements.

would discuss participating in local media interviews.

concerning their candidacy prior to the November 2019 general election.

to discuss campaign strategy.

Plaintiff to want to speak with Mary Shkut, which he did.

otherwise had no substantive relationship with Mary Shkut.

County Board of Elections to run for reelection to the Village Council.

husband, Mike Vandenberg.

support Mary Shkut.

must be bribing or blackmailing Plaintiff in order to obtain his support.

to withdraw his support for Mary Shkut.

45. During the call, Defendant Pollino—the Village Mayor—told Plaintiff—a

quit if Mary Shkut were elected.

what Mary Shkut was using to blackmail or bribe Plaintiff.

maybe you were alone in a room with her.”

51. Plaintiff then terminated the call.

intimidate and shock Plaintiff.

The Ambush at Village Hall

55. On Monday, November 4, 2019, Plaintiff—a volunteer member of the Village

member of the Village Planning Board:

Planning Board meeting.

meeting as part of a coordinated plan to confront Plaintiff after the meeting.

Lein to confront Plaintiff after the meeting.

Defendants Lavelle and Lein.

64. Defendants Marcolese and Pollino followed Plaintiff from behind.

and Lavelle started yelling epithets and shouting accusations at Plaintiff.

such a confined space.

trapped between the Defendants, a minivan, and a flagpole.

69. During this time,

of Plaintiff, sometimes stopping no more than twelve inches from Plaintiff.

d. Defendant Marcolese stood in front of Plaintiff, behind Defendant Lavelle.

morals,” and that he was a liar.

f. Defendant Marcolese shouted that Plaintiff had “betrayed” him and

g. Defendant Pollino shouted several epithets at Plaintiff.

i. Plaintiff repeatedly attempted to calm Defendants, telling them that he

Defendant Lavelle shouted “We’re outdoors!”

j. Plaintiff also attempted to leave. On one occasion, Plaintiff believed that

recently deceased wife.

l. Plaintiff believed, particularly when Defendant Lein was screaming about