Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00652-GMS

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Filed 02/26/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KIRK A. POPE, JR., Plaintiff, v. ERIC D. SWANSON, individually and in his official capacity as Sussex County Sherriff; and SUSSEX COUNTY, a municipal corporation. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 07-652-XXX

Jury Trial Demanded

ANSWER AND AFFIRMATIVE DEFENSES Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendants hereby state their answer, general and specific denials, defenses and affirmative defenses to Plaintiff's Complaint. Responding to Allegations in the Complaint 1. Admitted that Defendant Sussex County is a municipal corporation

organized under the laws of the State of Delaware and that Defendant Swanson is the elected Sheriff of Sussex County, Delaware. Admitted that jurisdiction and venue over Plaintiff's claims are proper in this Court and that service of the Complaint has been properly made. 2. Admitted upon information and belief that Plaintiff is a United States

citizen and a resident of Lewes, Delaware. Admitted that Plaintiff was employed with Defendant Sussex County as a Corporal in the Sheriff's Office. Admitted that Plaintiff's job duties included, among others, certain responsibilities involving Information Technology and as a firearms instructor. Admitted that Plaintiff's employment was terminated effective January 1, 2007, and that the position of Corporal was eliminated.

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3.

Defendants are without sufficient information to admit or deny the

allegations contained in Paragraphs 44-47. 4. Paragraphs 17-30 of the Complaint are conclusions of law to which no

response is required. 5. Defendants specifically deny that they violated the Plaintiff's rights under

the First Amendment to the United States Constitution. By way of further answer, Defendants deny that Plaintiff's political beliefs , speech, or association was a substantial or motivating factor in the decision to terminate Plaintiff's employment. Defendants further deny including the allegation that Defendant Swanson is subject to individual liability pursuant to 42 U.S.C. § 1983 ("Section 1983). 6. Defendants likewise deny that they violated the First, Ninth, or Fourteenth

Amendments in connection with Plaintiff's right to vote. By way of further answer, a claim asserting interference with the right to vote is not properly asserted under any of the three amendments provided above. 7. It is further denied that Defendant Sussex County or Defendant Swanson

are liable to Plaintiff in any respect for compensatory or economic damages, attorney's fees, costs, or pre- or post-judgment interest. 8. Defendants likewise deny that they violated any common law or other

duty to Plaintiff. It is further denied that Defendants committed any wrongful act, that Plaintiff has incurred any damage or harm caused by Defendants, and that any legal, equitable or other relief of any kind is due Plaintiff. Failure to State a Claim 9. The complaint fails to state a claim for which relief can be granted.

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No Punitive Damages Under 42 U.S.C. § 1983 10. Plaintiff's claim for punitive damages fails because such damages are not

available under Section 1983. Qualified Immunity 11. immunity. Failure to Mitigate Damages 12. damages. After-Acquired Evidence 13. Plaintiff's Complaint may be denied in whole or in part with the doctrine Plaintiff's claims are barred in whole or in part by his failure to mitigate Defendants are immune from suit pursuant to the doctrine of qualified

of after-acquired evidence. Good Faith and Reasonableness 14. Plaintiff's claims are barred because, at all times, Defendants made a good

faith effort to comply with applicable law; and Defendants acted lawfully and with legitimate, non-discriminatory intent that was not a pretext for unlawful discrimination.

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WHEREFORE, Defendants respectfully request that this action be dismissed with prejudice, and with costs and attorney's fees assessed against Plaintiff. YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Barry M. Willoughby Barry M. Willoughby (No. 1016) Margaret M. DiBianca (No. 4539) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6666 Facsimile: (302) 576-3314 E-mail: [email protected] Attorneys for Defendants Sussex County and Eric Swanson Dated: February 26, 2008

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