Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:05-cv-00037-SLR

Document 74

Filed 06/29/2006

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IN UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE HARRY L. SAMUEL ) ) ) ) ) ) ) ) ) ) )

C.A. No. 05-037- SLR JURY OF 12 DEMANDED

Plaintiff, v. THOMAS CARROLL, ET. AL Defendants,

ANSWER OF DEFENDANT FIRST CORRECTIONAL MEDICAL IN RESPONSE TO PLAINTIFF'S FILINGS D.I. 2 and D.I. 34 Defendant First Correctional Medical, hereinafter "FCM", responds as follows to the allegations set forth in the plaintiff's Complaints: 1. Wrongful conduct by answering defendant is denied and it is denied that any conduct

by defendant proximately caused any injuries, illnesses, or damages of any nature to the plaintiff. 2. 3. Denied that answering defendant breached a dental or medical standard of care. Denied that answering defendant was deliberately indifferent to a serious medical

need or in any way violated the plaintiff's Eighth Amendment rights. AFFIRMATIVE DEFENSES 4. 5. 6. Plaintiff fails to state a claim upon which relief may be granted. Plaintiff fails to state a 42 U.S.C. §1983 claim against FCM. The complaint fails to state a claim against defendant FCM upon which plaintiff may

recover with respect to all claims for civil rights violations, including all claims under 42 U.S.C. §1983 and the 8th Amendment of the Constitution of the United States, as there is no vicarious

Case 1:05-cv-00037-SLR

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Filed 06/29/2006

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liability for civil rights claims. 7. The complaint fails to state a claim against FCM upon which plaintiff may recover

with respect to all civil rights claims as FCM was not deliberately indifferent to a serious medical condition. 8. 9. 10. Plaintiff failed to properly plead a medical or dental malpractice action against FCM. Plaintiff failed to file an affidavit of merit pursuant to 18 Del. C. § 6853. FCM provided plaintiff with medical/dental care that was appropriate for his

conditions and which met the applicable standards of care. 11. Plaintiff has failed to proffer any medical expert testimony or support for his claims

of medical/dental negligence. 12. 13. recover. WHEREFORE, the defendant FCM asks that the Complaint against it be dismissed with prejudice and all costs be assessed against the plaintiff. Plaintiff failed to exhaust his administrative remedies. The Complaint fails to state a claim for punitive damages upon which plaintiff may

McCULLOUGH & McKENTY, P.A.

/s/ Dana Spring Monzo Dana Spring Monzo 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorney for Defendant First Correctional Medical Dated: June 29, 2006

Case 1:05-cv-00037-SLR

Document 74

Filed 06/29/2006

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE HARRY L. SAMUEL ) ) ) ) ) ) ) ) ) ) )

C.A. No. 05-037- SLR JURY OF 12 DEMANDED

Plaintiff, v. THOMAS CARROLL, ET. AL Defendants,

CERTIFICATE OF SERVICE I, DANA SPRING MONZO, hereby certify that this date attached Answer was served to the following: Via Electronic Service Kevin J. Connors 1220 N. Market Street, Suite 500 P.O. Box 8888 Wilmington, DE 19899 Ophelia M. Waters 820 N. French Street, 8th Floor Wilmington, DE 19801 Via U.S. Mail Harry L. Samuel SBI# 201360 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

Case 1:05-cv-00037-SLR

Document 74

Filed 06/29/2006

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McCULLOUGH & McKENTY, P.A. /s/ Dana Spring Monzo Dana Spring Monzo 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorney for Defendant First Correctional Medical Dated: June 29, 2006