Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00269-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH SMITH, Plaintiff, v. STAN TAYLOR, THOMAS CARROLL, FIRST CORRECTIONAL MEDICAL, INC., DAVID WILKERSON, and GAIL ELLER, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-269-SLR JURY TRIAL DEMANDED

DEFENDANT CARROLL'S ANSWER TO THE COMPLAINT COMES NOW, defendant Warden Thomas Carroll ("Answering Defendant") by and through undersigned counsel, and hereby answers the Complaint of the plaintiff, Kenneth Smith ("Plaintiff"). (D.I. 2). Answering Defendant answers only those portions of the Complaint applicable to him. The allegations in the Complaint are not numbered. Therefore Defendants Carroll answers the Complaint by page number and paragraph as follows: STATEMENT OF CLAIM Page No. 1, Paragraph No. 1 Sentence No.1 ­ It is admitted that Plaintiff made medical requests related to a sore on his head, but denied as to the alleged date Sentence No. 2 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 3 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 4 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation.

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Sentence No. 5 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 6 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Page No. 1, Paragraph No. 2 Sentence No.1 ­ The statement is illegible and does not appear to be directed to Answering Defendant, thus no response is required. To the extent that a response is required, the allegation is denied. Sentence No. 2 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 3 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 4 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 5 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 6 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Page No. 1, Paragraph No. 3 Sentence No.1 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 2 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation.

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Sentence No. 3 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 4 ­ The statement is not directed to Answering Defendant and thus no response is required. To the extent that a response is required, Answering Defendant is without

knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 5 ­ The statement is not directed to Answering Defendant and thus no response is required. To the extent that a response is required, Answering Defendant is without

knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 6 ­ The statement is not directed to Answering Defendant and thus no response is required. To the extent that a response is required, Answering Defendant is without

knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 7 ­ The statement is not directed to Answering Defendant and thus no response is required. To the extent that a response is required, Answering Defendant is without

knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 8 ­ This sentence is illegible and does not appear to be directed to Answering Defendant, thus no response is required. To the extent that a response is required, the statement is denied. Sentence No. 9 ­ Denied. Page No. 2, Paragraph No. 1 Sentence No. 1 ­ Denied. Sentence No. 2 ­ It is admitted that Bureau Chief Paul Howard provided Plaintiff with the letter attached to his Complaint and labeled "Exhibit A". Sentence No. 3 ­ Denied.

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Sentence No. 4 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 5 ­ Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. Sentence No. 6 ­ Denied. Sentence No. 7 ­ This statement is not drafted in the form of an allegation that Answering Defendant can admit or deny and thus no response is required. To the extent that a response is required, the allegation is denied. RELIEF It is specifically denied that Plaintiff is entitled to any monetary damages, including punitive, compensatory, investigation, or attorneys' fees. It is specifically denied that Plaintiff is entitled to declaratory, injunctive or any other relief. DEFENSES AND AFFIRMATIVE DEFENSES 1. 2. 3. 5. 6. Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff has failed to exhaust his administrative remedies. Answering Defendant is immune from liability under the Eleventh Amendment. Answering Defendant is entitled to qualified immunity. As to any claims under state law, Answering Defendant is entitled to immunity

under the State Tort Claims Act, 10 Del. C. § 4001 et seq. 7. As to any claims under state law, Answering Defendant is entitled to sovereign

immunity in his official capacity. 8. Answering Defendant cannot be held liable in the absence of personal

involvement for the alleged constitutional deprivations.

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9.

To the extent that Plaintiff seeks to hold Answering 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. 10. Answering Defendant, in his official capacity, is not liable for alleged violations

of Plaintiff's constitutional rights as he is not a "person" within the meaning of 42 U.S.C. § 1983. 11. 12. 13. Insufficiency of service of process. Insufficiency of process. Lack of jurisdiction over the person and subject matter.

WHEREFORE, the Answering Defendant respectfully requests that judgment be entered in his favor and against Plaintiff as to all claims and that attorney fees be awarded to the Answering Defendant. DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stacey Xarhoulakos_____ Stacey Xarhoulakos, # 4667 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, De 19801 (302) 577-8400 Dated: November 21, 2007 Attorney for Defendant Carroll

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CERTIFICATE OF SERVICE I hereby certify that on November 21, 2007, I electronically filed Defendant Carroll's Answer to the Complaint with the Clerk of Court using CM/ECF. I hereby certify that on November 21, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant: Kenneth Smith SBI # 193906 Delaware Correctional Center 1181 Paddock Road. Smyrna, DE. 19977 /s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]