Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00380-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) TOM CARROLL, ELIZABETH BURRIS, ) D. PIERCE, DAVID K. HOLMAN, ) JOSEPH RICHARDSON, A. PROFACI, ) D. FIELDS, C.O. BASSINGER, ) 3 UNK. KITCHEN C.O.'S, QUANI NEAL, ) DR. LOUISE DESROSIERS, ) DIETICIAN/NUTRITIONIST CMS, and ) M. KNIGHT, ) ) Defendants. ) LOU GARDEN PRICE, SR.,

C.A. No. 07-380-SLR

Jury Trial Requested

STATE DEFENDANTS TOM CARROLL, ELIZABETH BURRIS, DAVID PIERCE, JOSEPH RICHARDSON, ALISA PROFACI, DORENE FIELDS, CHRISTINE BAYSINGER, AND MICHAEL KNIGHT'S ANSWER TO PLAINTIFF'S COMPLAINT [RE: D.I. 2] COMES NOW, State Defendants Tom Carroll, Elizabeth Burris, David Pierce, Joseph Richardson, Alisa Profaci, Dorene Fields, Christine Baysinger and Michael Knight (the "State Defendants")1, by and through their undersigned counsel, and hereby respond to the unnumbered paragraphs of Plaintiff Lou Garden Price's ("Price" or "Plaintiff") Complaint, dated June 4, 2007 and filed June 12, 2007 (D.I. 2), as follows:

It appears from the docket that defendant David Holman has not been served with the Complaint. Therefore he is not a party to the State Defendants' Answer.

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Previous Lawsuits State Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in the "Previous Lawsuits" section of the Complaint and, therefore, deny same. Exhaustion of Administrative Remedies State Defendants admit that Price sent a letter to Joseph Richardson. State Defendants also admit that State Defendant Holman responded to Price's letter to State Defendant Richardson. State Defendants further admit that Price's medical records

indicate that he submitted sick call slips. State Defendants are without knowledge or information sufficient to form a belief as to the people Price spoke with or what they said in response and therefore, deny same. State Defendants deny each and every other allegation of the "Exhaustion of Administrative Remedies" section not specifically admitted herein. Parties A. State Defendants admit that Price is an inmate currently

incarcerated at the Delaware Correctional Center ("DCC") at 1181 Paddock Road, Smyrna, DE 19977. B. State Defendants deny that a "C.O. Bassinger" works in the MHU

kitchen as an officer at DCC. By way of further response, State Defendants state that Christine Baysinger is a Staff Sergeant at DCC who works in the MHU kitchen several days a week. C. State Defendants admit that at the time of the filing of Price's

Complaint Tom Carroll was the Warden at DCC, Betty Burris and David Pierce were

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Deputy Wardens at DCC, David Holman was a Major at DCC, Joseph Richardson was an Investigator at DCC, Alisa Profaci was a Staff Lieutenant at DCC, Dorene Fields was a Lieutenant at DCC, and Michael Knight was a Food Services Administrator at the Department of Correction. State Defendants are without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in paragraph C of the "Parties" section of the Complaint and therefore deny same. Statement of Claim Paragraph No. 1: The allegations of Paragraph No. 1 of the

"Statement of Claim" section of the Complaint are denied. Paragraph No. 2: State Defendants admit that Price's medical records

indicate that CMS terminated Price's special diet on May 15, 2007. By way of further response State Defendants state that only the medical provider can terminate an inmate's special diet. State Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations asserted in Paragraph No. 2 of the "Statement of Claim" section of the Complaint and therefore deny same. Paragraph No. 3: State Defendants admit that Price sent a letter

addressed to Joseph Richardson on or about May 16, 2007. State Defendants further admit that Price also sent out his medication to State Defendant Richardson. By way of further response, State Defendant Holman responded to Price's letter by a memorandum dated May 22, 2007, telling Price not to send out his medication. State Defendants also admit that only the medical provider can prescribe and order a special diet for an inmate. State Defendants deny each and every other allegation of Paragraph No. 3 of the "Statement of Claim" section of the Complaint not specifically admitted herein.

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Paragraph No. 4:

State Defendants admit that a memorandum from

State Defendant Holman dated May 22, 2007 is attached to the Complaint. Paragraph No. 5: State Defendants admit that State Defendant Profaci

returned Price's medications to him. By way of further response, State Defendants state that only the medical provider can prescribe or order a special diet for an inmate. State Defendants deny each and every other allegation of Paragraph No. 5 of the "Statement of Claim" section of the Complaint not specifically admitted herein. Paragraph No. 6: State Defendants are without knowledge or

information sufficient to form a belief as to the truth of the allegations asserted in Paragraph No. 6 of the "Statement of Claim" section of the Complaint and therefore, deny same. Paragraph No. 7: State Defendants are without knowledge or

information sufficient to form a belief as to the truth of the allegations asserted in Paragraph No. 7 of the "Statement of Claim" section of the Complaint and therefore, deny same. Paragraph No. 8: The allegations of Paragraph No. 8 of the

"Statement of Claim" section of the Complaint are denied. By way of further response, State Defendants specifically deny that they committed any wrongdoing or violated Price's constitutional rights. RELIEF State Defendants specifically deny that Plaintiff is entitled to any relief or damages, including injunctive relief, compensatory damages, punitive damages, costs and/or attorneys' fees.

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DEFENSES AND AFFIRMATIVE DEFENSES 1. granted. 2. moot. 3. immunity. 4. As to any claims against the State or against State Defendants in This action and all claims are barred by Eleventh Amendment The allegations of the Complaint and the claims made therein are The Complaint fails to state claims upon which relief may be

their official capacities, State Defendants and the State are protected from liability by the doctrine of sovereign immunity. 5. State Defendants, in their official capacities, are not liable for

alleged violations of Plaintiff's constitutional rights as they are not "persons" within the meaning of 42 U.S.C. § 1983. 6. Officials and employees of the State of Delaware acting in good

faith within the scope of their employment and without knowingly violating well established federal rights, are entitled to qualified immunity and cannot be held liable in this action. 7. As to any claims sounding in state law, the State Defendants are

immune from liability under the State Tort Claims Act, 10 Del. C. §4001 et seq. 8. To the extent Plaintiff seeks to hold State Defendants liable based

on supervisory responsibilities, the Doctrine of Respondeat Superior or vicarious liability is not a basis for liability in an action under 42 U.S.C. § 1983. 9. Plaintiff has failed to exhaust his administrative remedies,

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including but not limited to, remedies pursuant to 42 U.S.C. § 1997a(e). 10. State Defendants cannot be held liable in the absence of personal

involvement for alleged constitutional deprivations. 11. To the extent Plaintiff's claims sound in negligence, Plaintiff

cannot state a cause of action under 42 U.S.C. § 1983. 12. 13. The Plaintiff's claims are barred by his contributory negligence. Plaintiff fails to state a claim against State Defendants for failure to

train and maintenance of wrongful customs, practices and policies. 14. Plaintiff fails to state a claim against State Defendants for violation

of the Eighth Amendment. 15. Plaintiff's injuries and damages, if any, resulted from an

intervening and superseding cause. 16. injuries, if any. 17. 18. 19. Insufficiency of service of process. Insufficiency of process. Lack of jurisdiction over the person and subject matter. DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General 820 N. French Street Wilmington, DE 19801 (302) 577-8400 Attorney for State Defendants Plaintiff's own conduct proximately caused and/or exacerbated his

Dated: October 18, 2007

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on October 18, 2007, I caused a true and correct copy of the attached State Defendants Tom Carroll, Elizabeth Burris, David Pierce, Joseph Richardson, Alisa Profaci, Dorene Fields, Christine Baysinger, and Michael Knight's Answer to Plaintiff's Complaint [Re: D.I. 2] to be served on the following individual in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Inmate Lou G. Price, Sr. SBI #454309 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 MANNER OF DELIVERY: One true copy by facsimile transmission to each recipient Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express Two true copies by hand delivery to each recipient /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 302-577-8400