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

Case 1:07-cv-00683-GMS

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Filed 05/19/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) CARL DANBERG, THOMAS CARROLL, ) CORRECTIONAL MEDICAL SERVICE, ) RICHARD P. DUSHUTTLE, M.D., and ) DEPUTY WARDEN DAVID PIERCE, ) ) Defendants. ) DESHAUNE D. DARLING,

C. A. No. 07-683-GMS

THOMAS CARROLL'S AND DEPUTY WARDEN DAVID PIERCE'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT COME NOW Thomas Carroll and Deputy Warden David Pierce (collectively "State Defendants") hereby answer the unnumbered Amended Complaint as follows: STATEMENT OF CLAIM Denied that Plaintiff's civil liberties were denied in any manner. Denied that State Defendants acted or failed to act in any manner which constitutes a violation of Plaintiff's civil liberties. Any allegation directed at or pled against parties other than the employees of the State of Delaware are to be answered by another. RELIEF Denied that Plaintiff is entitled to any relief. DEFENSES AND AFFIRMATIVE DEFENSES The following defenses and affirmative defenses are set forth without admission of liability or improper conduct as to the State Defendants:

Case 1:07-cv-00683-GMS

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First Defense 1. This matter is barred by the Eleventh Amendment of the U.S. Constitution. Second Defense 2. The complaint fails to state a legal claim for which relief could be granted. Third Defense 3. The complaint should be dismissed, in whole or in part, for Plaintiff's failure to exhaust administrative remedies. Fourth Defense 4. Plaintiff's claims, in whole or in part, are barred by the appropriate statute of limitation or repose. Fifth Defense 5. The Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the State Defendants. Sixth Defense 6. The Plaintiff has failed to mitigate any of his alleged damages Seventh Defense 7. The State Defendants are entitled to qualified immunity. Eighth Defense 8. As to any claims under state law, the State Defendants are entitled to immunity under the State Tort Claims Act, 10 Del. C. § 4001 et seq. Ninth Defense 9. As to any claims under State law, the State Defendants are entitled to sovereign immunity in their official capacities.

Case 1:07-cv-00683-GMS

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Tenth Defense 10. The Plaintiff's claims are barred by his contributory negligence. Eleventh Defense 11. This action is barred by the principles of res judicata and collateral estoppel. Twelfth Defense 12. Insufficiency of service of process. Thirteenth Defense 13. Insufficiency of process. Fourteenth Defense 14. Lack of personal jurisdiction. Fifteenth Defense 15. Lack of subject matter jurisdiction. WHEREFORE, the State Defendants demand that judgment be entered in their favor as to all claims and against the Plaintiff as to all claims along with attorney fees to be awarded to the State Defendants. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Linda M. Carmichael Linda M. Carmichael, DE # 3570 Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendants Thomas Carroll and David Pierce

DATE: May 19, 2008

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CERTIFICATE OF MAILING AND/OR DELIVERY
I hereby certify that on May 19, 2008, I served two copies of Thomas Carroll's and Deputy Warden David Pierce's Answer to Plaintiff's Amended Complaint on the following: Deshaune D. Darling SBI# 229896 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ Linda M. Carmichael Linda M. Carmichael, DE # 3570 Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendants Thomas Carroll and David Pierce