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

Case 1:07-cv-00239-JJF

Document 84

Filed 06/20/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNION : : Defendants. : RICHARD E. CLARK, JR.,

C.A. No. 07-239 JJF

TRIAL BY JURY OF 12 DEMANDED

DEFENDANT DR. BINNION'S ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT (D.I. 11) Defendant Dr. Binnion, by and through his undersigned counsel, hereby states, for his Answer to Plaintiff's Second Amended Complaint: Statement of Claim James Welch The allegations of this portion of Plaintiff's Second Amended Complaint are not directed toward Answering Defendant, and so no response is required. To the extent that the allegations of this portion of Plaintiff's Second Amended Complaint are directed toward Answering Defendant, they are denied. Statement of Claim Dr. Binnon To the extent the allegations of this portion of Plaintiff's Second Amended Complaint constitute conclusions of law, no response is required. To the extent that the allegations of this portion of Plaintiff's Second Amended Complaint are not directed toward Answering Defendant, no response is required. To the extent that the factual allegations of this portion of Plaintiff's Second Amended Complaint are consistent with Plaintiff's medical records, they are admitted; otherwise, they are denied. Answering Defendant denies deliberate indifference to any serious

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medical need and contends that Plaintiff received adequate, appropriate medical attention. Answering Defendant denies deliberate indifference, serious medical need, medical negligence and/or causation. ADDITIONAL DEFENSES 1. 2. 3. 4. Plaintiff fails to state a claim upon which relief can be granted. Answering Defendant was not deliberately indifferent to any serious medical need. Plaintiff fails to state a claim against Answering Defendant for medical negligence. To the extent Plaintiff states a claim for medical negligence, such claim is barred by

Plaintiff's failure timely to file, or seek an extension to file, an affidavit of merit pursuant to 18 Del. C. § 6853. 5. 6. 7. 8. Plaintiff's claims are barred by the statute of limitations. Answering Defendant was not acting under color of State or Federal law. Plaintiff fails adequately to plead a claim for punitive damages. Answering Defendant provided Plaintiff with medical care that was appropriate for his

conditions and which met the applicable standard of care. 9. Answering Defendant, at all times material to the allegations in the Complaint, acted in

good faith and with the reasonable belief, both objective and subjective, that his actions were lawful and not in violation of the rights of Plaintiff under the Constitution and laws of the United States and/or the State of Delaware. 10. 11. Answering Defendant is entitled to good faith immunity. Plaintiff's claims may be barred or limited by the provisions in the United States Civil

Rights Act, as discovery may show. 12. Plaintiff's claims may otherwise be barred by 28 U.S.C. §1915.

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13. 14. 15.

Plaintiff's claims may be barred or limited by contributory/comparative negligence. Plaintiff failed to mitigate his damages. Plaintiff's claims are barred by failure of service, by failure of service of process, lack of

subject matter and/or personal jurisdiction. 16. Answering Defendant hereby adopts any and all additional defenses hereinafter asserted

by his co-defendants. 17. Answering Defendant reserves the right to assert additional defenses in the future to the

extent warranted by discovery. 18. Answering Defendant had no authority or control to approve or deny Plaintiff's requests

for surgical intervention. ANSWER TO ALL PRESENT AND FUTURE CROSS-CLAIMS 19. Answering Defendant denies all cross-claims asserted against him now or hereinafter.

WHEREFORE, Answering Defendant Dr. Binnon respectfully requests entry of judgment in his favor and against Plaintiff together with costs and attorneys' fees and such other relief as this Honorable Court deems just and appropriate. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Dr. Binnion Date: June 20, 2008

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 20th day of June 2008, the foregoing Answer to Second Amended Complaint was filed via CM/ECF and served upon the following in the manner indicated:

Richard E. Clark Jr. SBI# 477726 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 Erika Yvonne Tross Delaware Department of Justice 820 North French Street 6th Floor Wilmington, DE 19801

VIA FIRST CLASS MAIL

VIA CM/ECF FILING

/s/ James E. Drnec James E. Drnec, Esquire (#3789)