Free Answer to Crossclaim - District Court of Delaware - Delaware

Case 1:05-cv-00527-SLR

Document 73

Filed 12/15/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID S. YARNALL, Plaintiff, vs. CORPORAL ANTHONY MENDEZ, DELAWARE STATE POLICE TROOP 7, PTLM LOWE and PFC BUCHERT, ) MILLSBORO POLICE DEPARTMENT, Defendants. ) ) ) ) ) ) ) ) ) ) )

CONSOLIDATED Civ. No. 05-527-SLR Civ. No. 06-501-SLR Civ. No. 06-520-SLR

STATE DEFENDANTS' RESPONSE TO CROSS-CLAIM The Department of Justice, on behalf of Corporal Anthony Mendez and the Delaware State Police ("the State Defendants"), respond to the cross-claim of Defendants Lowe, Buchert, and the Millsboro Police Department ("the Millsboro Defendants") for contribution.

FIRST AFFIRMATIVE DEFENSE Eleventh Amendment sovereign immunity bars the claim for contribution against the State Defendants. The cross-claim is derivative of plaintiff's Section 1983 action, and is not a Section 1983 action against Corporal Mendez in his individual capacity for violation of the Millsboro Defendants' civil rights. A political subdivision cannot maintain a civil rights action against the State that created it.

Case 1:05-cv-00527-SLR

Document 73

Filed 12/15/2006

Page 2 of 3

SECOND AFFIRMATIVE DEFENSE The cross-claim for contribution fails to state a claim upon which relief can be granted as a matter of law. The issue of contribution in a civil rights action is controlled by federal, not state, law. Federal common law does not recognize a right of contribution in a Section 1983 action.

Respectfully submitted,

/s/ W. Michael Tupman W. Michael Tupman Deputy Attorney General Delaware Department of Justice 102 West Water Street, 3rd Floor Dover, DE 19904 (302) 739-7641 Attorney for Corporal Mendez and Delaware State Police Dated: December 15, 2006

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Case 1:05-cv-00527-SLR

Document 73

Filed 12/15/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 15th day of December, 2006, I filed and served electronically the State Defendants' Response to Cross-Claim; on that same date, I sent a hard-copy of that Response to Cross-Claim by first-class U.S. Mail, postage prepaid, to the Clerk of the Court; and on that same date I sent two hard copies of that Response to Cross-Claim by first-class U.S. Mail, postage prepaid, to:

David S. Yarnell I/M 548973 Sussex County Correctional Institution Building HUI P.O. Box 500 Georgetown, DE 19947 Plaintiff pro se Bruce C. Herron, Esquire Akin & Herron, P.A. 1220 Market Street, Suite 300 P.O. Box 25047 Wilmington, DE 19899 Attorney for Defendants Lowe and Buchert

/s/ W. Michael Tupman W. Michael Tupman

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