Free Answer to Amended Complaint - District Court of Delaware - Delaware

Case 1:05-cv-00527-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) CPL. ANTHONY MENDEZ, DELAWARE ) STATE POLICE - TROOP 7, PTLM ) LOWE, UNKNOWN OFFICERS WHO ) RESPONDED TO SCENE OF ) MILLSBORO POLICE, AND PFC ) BUCHERT, ) ) Defendants. ) DAVID S. YARNALL,

CONSOLIDATED CIV. No.: 05-527-SLR CIV. NO.: 06-501-SLR CIV. NO.: 06-529-SLR

ANSWER, AFFIRMATIVE DEFENSES AND CROSS-CLAIM OF DEFENDANT PFC BUCHERT TO COMPLAINT FILED IN C.A. NO. 06-529-SLR The numbered paragraphs in this Answer correspond to the numbered paragraphs in the Complaint. Unless specifically

admitted or otherwise qualified, defendant PFC Buchert generally denies the allegations in Plaintiff's Complaint. I.A. Admitted that plaintiff filed another lawsuit in this

Court at C.A. 05-527-SLR. II. III. Since the Complaint states "N/A" no answer is required. Admitted that defendant PFC Buchert was employed as a

police officer at the Millsboro Police Department on May 11, 2005. IV. Denied that excessive force was used against plaintiff.

Denied that PFC Buchert failed to prevent the use of excessive force by Millsboro Police Officer Lowe. 1 Denied that plaintiff

Case 1:05-cv-00527-SLR

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was "attacked" by Lowe. hood."

Denied that plaintiff was "calm on the

Denied that plaintiff was harassed, threatened or hit in Denied that PFC Buchert's police report

the back of the neck.

"doesn't match with" the Delaware State Police Video. V. required. AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint fails to state claims upon which This is a prayer for relief to which no answer is

relief can be granted. 2. Defendant PFC Buchert is entitled to qualified immunity.

Harlow v. Fitzgerald, 57 U.S.C. 800 (1982). 3. No action or conduct of defendant violated any clearly

established statutory or constitutional right of which a reasonable person would have known. 4. Plaintiff's claims are barred by the County and

Municipal Tort Claims Act, 10 Del. C. § 4011 et. seq. 5. Plaintiff was negligent in a manner which proximately Plaintiff was negligent in that he

caused his alleged injuries.

was intoxicated and/or under the influence of drugs and violently resisted police officers' lawful commands. 6. The actions of plaintiff were superseding and/or

intervening causes of his alleged injuries.

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CROSS-CLAIM FOR INDEMNIFICATION AND CONTRIBUTION 7. Defendant PFC Buchert denies that he is liable to However, in the event that answering

plaintiff in any respect.

defendant is held liable to the plaintiff, then he cross-claims against co-defendants Cpl. Anthony Mendez and Delaware State Police Troop 7 for indemnification and contribution pursuant to the provisions of Federal Law and the Delaware Uniform Contribution Among Joint Tortfeasors Law, 10 Del. C. Ch. 63. WHEREFORE, Defendant PFC Buchert requests that the Complaint be dismissed, with costs and attorney fees assessed against plaintiff. AKIN & HERRON, P.A. /s/ Bruce C. Herron Bruce C. Herron Attorney I.D. No.: 2315 1220 N. Market Street Suite 300 P.O. Box 25047 Wilmington, DE 19899 (302) 427-6987 Attorney for Defendant PFC Buchert Dated: December 4, 2006
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