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

Case 1:05-cv-00527-SLR

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Filed 12/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID S. YARNALL, ) ) 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. )

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

ANSWER, AFFIRMATIVE DEFENSES AND CROSS-CLAIM OF DEFENDANT PTLM LOWE TO COMPLAINT FILED IN C.A. NO. 06-501-SLR The numbered paragraphs in this Answer correspond to the numbered paragraphs in the Complaint. Unless specifically

admitted or otherwise qualified, defendant Ptlm Lowe generally denies the allegations in the Complaint. I. A. Admitted that plaintiff previously filed a related

suit at C.A. 05-527-SLR. II. III. Since the Complaint states "N/A" no answer is required. Admitted that defendant Ptlm Lowe is employed as a

police officer at the Millsboro Police Department. IV.-1. Denied that Ptlm Lowe used excessive force. Denied

that Ptlm Lowe violated plaintiff in any way. Lowe "attacked" plaintiff with a taser gun. Lowe used a reasonable 1

Denied that Ptlm

Admitted that Ptlm

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amount of force under the circumstances in an effort to subdue plaintiff's unlawful aggressive resistance. IV.-2. Denied that Ptlm Lowe used excessive force. Denied

that Ptlm Lowe attacked plaintiff.

Admitted that Ptlm Lowe used

a reasonable amount of force under the circumstances in an effort to subdue plaintiff's unlawful aggressive resistance. IV.3. Denied that Ptlm Lowe used excessive force. Admitted

that Ptlm Lowe used a reasonable amount of force under the circumstances in an effort to subdue plaintiff's unlawful aggressive resistance. Admitted that Ptlm Lowe grabbed plaintiff

by the shoulder after plaintiff began running away from police officers who were lawfully attempting to take him into custody. V. required. AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint fails to state claims upon which This is a prayer for relief to which an answer is not

relief can be granted. 2. Defendant 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.

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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. CROSS-CLAIM FOR INDEMNIFICATION AND CONTRIBUTION 7. Defendant Ptlm Lowe 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 Ptlm Lowe 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 Ptlm Lowe Dated: December 4, 2006 3