Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00486-SLR-MPT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD ANDRUS, : : Plaintiff, : : v. : : CITY OF WILMINGTON; CITY OF : WILMINGTON POLICE DEPARTMENT; : CORPORAL HENRY CANNON; : OFFICER CPL. CHRIS CONNELLY; : OFFICER MARTY STORY; : OFFICER STEPHEN BROCK; and : OFFICER JEFFREY GLENN, : : Defendants. :

C.A. No. 07-486***

ANSWER TO THE COMPLAINT 1. Denied that Defendants deprived Plaintiff of any rights, privileges or immunities

secured by the United States Constitution. The remaining allegations set forth in this paragraph state a legal conclusion to which no response is required. PARTIES 2. Admitted that Plaintiff Richard Andrus is an adult. Defendants are without

knowledge or information sufficient to form a belief as to the truth of the remaining allegations set forth in this paragraph. 3. 4. Admitted. Admitted that Cpl. Henry Cannon is a member of the City of Wilmington Police

Department and an adult citizen of the United States. Denied that Cpl. Henry Cannon is a resident of the State of Delaware. The remaining allegations set forth in this paragraph state legal conclusions to which no response is required. 5. Admitted that Cpl. Chris Connelly is a member of the City of Wilmington Police

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Department, an adult citizen of the United States and a resident of the State of Delaware. The remaining allegations set forth in this paragraph state legal conclusions to which no response is required. 6. Admitted that Marty Story is an adult citizen of the United States and a resident

of the State of Delaware and that he was a member of the City of Wilmington Police Department at the time of the incident that is the subject of this lawsuit. Denied that Defendant Story is presently a member of the Wilmington Police Department. The remaining allegations set forth in this paragraph state legal conclusions to which no response is required. 7. Admitted that Officer Stephen Brock is a member of the City of Wilmington

Police Department, an adult citizen of the United States and a resident of the State of Delaware. The remaining allegations set forth in this paragraph state legal conclusions to which no response is required. 8. Denied. No person by the name of Jeffrey Glenn was involved in the incident

giving rise to this lawsuit or was employed by the Wilmington Police Department at any relevant time. JURISDICTION AND VENUE 9. The allegations set forth in this paragraph state legal conclusions to which no

response is required. 10. The allegations set forth in this paragraph state legal conclusions to which no

response is required. FACTS 11. Admitted that Connections is a mental health facility located at 500 West 10th

Street, Wilmington, DE 19802. It is further admitted upon information and belief that Plaintiff

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was mentally ill at all times relevant hereto. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations set forth in this paragraph. 12. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the allegations set forth in this paragraph. 13. 14. Admitted. Admitted, except that Defendants lack knowledge or information regarding

Connections' protocol and whether such protocol was followed. 15. 16. 17. Admitted. Admitted. Admitted. However, they did so only after Plaintiff refused their repeated verbal

requests for him to exit the vehicle so he could be taken to the Delaware State Hospital. 18. Admitted.

19.

Denied that anyone by the name of Jeffrey Glenn was involved in the incident

giving rise to this lawsuit or was employed by the Wilmington Police Department at any relevant time. Defendants admit the remaining allegations set forth in this paragraph. 20. Admitted that the officers made several unsuccessful attempts to physically

remove Andrus from his vehicle. Admitted that Plaintiff was sprayed with pepper spray, but only after he refused to exit the vehicle and kicked, thrashed his arms at and attempted to bite the officers. Admitted that Defendant Cannon kicked Plaintiff in an effort to break Plaintiff's grasp on Defendant Connelly's handgun, but only after Plaintiff had placed Defendants in fear of imminent physical danger or death by grabbing Defendant Connelly's handgun as he was resisting the officers. Defendants deny the remaining allegations set forth in this paragraph.

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21.

Denied as stated. Defendants admit that, in an effort to break Plaintiff's grasp on

Corporal Connelly's handgun, Defendant Cannon kicked Plaintiff and Defendant Connelly struck Plaintiff on the right side of his head with an asp baton. However, these actions were taken only after Plaintiff had placed Defendants in fear of imminent physical danger or death by grabbing Defendant Connelly's handgun as he was resisting the officers. 22. Admitted that the officers eventually physically removed Plaintiff from the car Defendants further admit that a

and that he was placed on the ground and handcuffed.

reasonable and necessary amount of force was used to place Plaintiff in handcuffs, as Plaintiff was resisting Defendants' efforts to handcuff him and was kicking and attempting to escape after being removed from the vehicle. Defendants deny the remaining allegations set forth in this paragraph. 23. Denied, except that it is admitted upon information and belief that Richard

Andrus was mentally ill at all relevant times. 24. 25. Denied. Denied. COUNT I: 42 U.S.C. § 1983 USE OF EXCESSIVE FORCE (OFFICER JOHN DOE #1 AND OFFICER JOHN DOE #2) 26. Defendants repeat and re-allege the answers set forth in paragraphs 1-25 above, as

though fully set forth herein. 27. Denied. COUNT II 28. Defendants repeat and re-allege the answers set forth in paragraphs 1-27 above, as

though fully set forth herein. 29. Denied.

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COUNT III 30. Defendants repeat and re-allege the answers set forth in paragraphs 1-29 above, as

though fully set forth herein. 31. Denied. (a) - (c) Denied. 32. Denied. COUNT IV: 42 U.S.C. § 1983 (CITY OF WILMINGTON AND CITY OF WILMINGTON POLICE DEPARTMENT) 33. Defendants repeat and re-allege the answers set forth in paragraphs 1-32 above, as

though fully set forth herein. 34. 35. Denied. Denied. (a) - (g) Denied. 36. 37. 38. 39. 40. this action. DAMAGES 41. Defendants repeat and re-allege the answers set forth in paragraphs 1-40 above, as Denied. Denied. Denied. Denied. Denied. No person by the name of Alice Walker has been named as a Plaintiff in

though fully set forth herein. 42. Denied. (a) - (g) Defendants deny Plaintiff's entitlement to the damages listed in these

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sub-paragraphs. DEFENSES: FIRST DEFENSE 43. The Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 44. Insufficiency of service of process. FIRST AFFIRMATIVE DEFENSE 45. Defendants' actions were supported by probable cause. SECOND AFFIRMATIVE DEFENSE 46. 31 Del. C. §§3906 - 3907 authorize police officers to undertake involuntary

protective services of infirm adults. THIRD AFFIRMATIVE DEFENSE 47. The actions and conduct of Defendants did not rise to the level of a Constitutional

or statutory violation, and therefore, Plaintiff did not suffer any infringement of his constitutional rights or rights secured by a federal or state statute. FOURTH AFFIRMATIVE DEFENSE 48. The actions and conduct of Defendants were objectively reasonable under the

circumstances of which Defendants were aware, and therefore, Defendants are entitled to qualified immunity from all liability. FIFTH AFFIRMATIVE DEFENSE 49. The actions and conduct of Defendants did not violate any clearly established

Constitutional or Federal statutory rights of which Defendants reasonably should have been aware, thereby entitling Defendants to qualified immunity.

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SIXTH AFFIRMATIVE DEFENSE 50. Defendants are entitled to immunity pursuant to 10 Del. C. §4010 et seq. SEVENTH AFFIRMATIVE DEFENSE 51. Plaintiff's damages, if any, are limited pursuant to 10 Del. C. § 4013. EIGHTH AFFIRMATIVE DEFENSE 52. To the extent that Plaintiff may have been injured, Defendants were not the

proximate cause of any such injuries. NINTH AFFIRMATIVE DEFENSE 53. by Plaintiff. TENTH AFFIRMATIVE DEFENSE 54. To the extent that Plaintiff's Complaint alleges that the City of Wilmington Punitive damages are not recoverable against Defendants for the claims alleged

and/or the City of Wilmington Police Department are liable on a theory of respondeat superior, such theory cannot be a basis for liability under 42 U.S.C. § 1983. ELEVENTH AFFIRMATIVE DEFENSE 55. Plaintiff cannot show an official policy, practice, procedure or custom sufficient

to support a finding of municipal liability under 42 U.S.C. § 1983. TWELFTH AFFIRMATIVE DEFENSE 56. Plaintiff cannot establish municipal liability under 42 U.S.C. § 1983 because he

cannot demonstrate deliberate indifference on the part of the City of Wilmington or the City of Wilmington Police Department. THIRTEENTH AFFIRMATIVE DEFENSE 57. The Wilmington Police Department is not subject to suit.

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FOURTEENTH AFFIRMATIVE DEFENSE 58. Defendants were authorized and required to take Plaintiff into custody without the

necessity of a warrant pursuant to 16 Del. C. § 5122, and therefore, Plaintiff's arrest was lawful. FIFTEENTH AFFIRMATIVE DEFENSE 59. Defendants are entitled to immunity pursuant to 16 Del. C. § 5122(f), as any harm

resulting from the performance of the officers' duties under 16 Del. C. § 5122 was neither intentional nor the result of willful or wanton misconduct on the part of Defendants. SIXTEENTH AFFIRMATIVE DEFENSE 60. Defendants' use of force against Plaintiff was privileged and justifiable pursuant

to 11 Del. C. § 464 and other applicable law because Defendants reasonably believed that such force was immediately necessary for the purpose of protecting themselves against the use of unlawful and/or deadly force by the Plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE 61. Defendants' use of force against Plaintiff was privileged and justifiable pursuant

to 11 Del. C. § 465 and other applicable law because Defendants reasonably believed that such force was immediately necessary for the purpose of protecting the other Defendants against the use of unlawful and/or deadly force by the Plaintiff. EIGHTEENTH AFFIRMATIVE DEFENSE 62. Defendants' use of force against Plaintiff was privileged and justifiable pursuant

to 11 Del. C. § 467 and other applicable law because Defendants were making a lawful arrest and/or assisting in making a lawful arrest and reasonably believed that such force was immediately necessary to effect the arrest, prevent Plaintiff's escape and protect themselves and the other officers from death or serious physical injury.

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WHEREFORE, Defendants, City of Wilmington, City of Wilmington Police Department, Corporal Henry Cannon, Corporal Chris Connelly, Officer Marty Story, and Officer Stephen Brock respectfully request that this Court dismiss Plaintiff's Complaint with prejudice, assess costs and reasonable attorney's fees against the Plaintiff, and order such other relief as this Court deems appropriate. /s/ Andrea J. F. Rhen Andrea J. F. Rhen, Esquire (DE Bar I.D. #3831) Assistant City Solicitor City of Wilmington Law Department Louis L. Redding City/County Building 800 N. French Street, 9th Floor Wilmington, DE 19801 (302) 576-2175 E-mail: [email protected] Attorney for Defendants

Dated: August 29, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : CITY OF WILMINGTON; CITY OF : WILMINGTON POLICE DEPARTMENT; : CORPORAL HENRY CANNON; : OFFICER CPL. CHRIS CONNELLY; : OFFICER MARTY STORY; : OFFICER STEPHEN BROCK; and : OFFICER JEFFREY GLENN, : : Defendants. : RICHARD ANDRUS,

C.A. No. 07-486***

CERTIFICATE OF SERVICE I, Andrea J. Faraone, Esquire, hereby certify that on this 29th day of August, 2007, I filed the Defendants' Answer to the Complaint with the Clerk of Court using CM/ECF which will send notification of such filing(s) and that this document is available for viewing and downloading from CM/ECF. Michael W. Modica, Esquire 715 King Street, Suite 300 P.O. Box 437 Wilmington, DE 19899

/s/ Andrea J. F. Rhen Andrea J. F. Rhen, Esquire (DE Bar I.D. #3831) Assistant City Solicitor City of Wilmington Law Department Louis L. Redding City/County Building 800 N. French Street, 9th Floor Wilmington, DE 19801 (302) 576-2175 E-mail: [email protected] Attorney for Defendants