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

Case 1:07-cv-00125-JJF

Document 32

Filed 12/10/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : DAVID PRADO, SHAWN MARGYNIAK, : and MICHAEL SZCZERBA, : : Defendants. : RAYMOND E. BLAKE,

C.A. No. 07-125 JJF TRIAL BY JURY DEMANDED

DEFENDANTS MICHAEL J. SZCZERBA AND DAVID PRADO'S ANSWER TO THE AMENDED CIVIL RIGHTS COMPLAINT I. JURISDICTION 1. II. This paragraph states a legal conclusion to which no response is required.

PLAINTIFF 2. Defendants lack sufficient knowledge to admit or deny this paragraph.

III.

DEFENDANT 3. 4. This paragraph is not directed to Answering Defendants. Admitted that Defendant Michael J. Szczerba holds the official position of Chief of

Police in the Wilmington Police Department. Denied that Szczerba holds said position in an "unofficial capacity." The remaining allegations contained in this paragraph state a legal conclusion to which no response is required. 5. Admitted that Defendant David Prado is a police officer in the Wilmington Police

Department. The remaining allegations contained in this paragraph state a legal conclusion to which no response is required.

Case 1:07-cv-00125-JJF

Document 32

Filed 12/10/2007

Page 2 of 5

IV.

FACTS 6. Denied that the encounter between Plaintiff and Defendant Prado occurred on June

24, 2006 at 8:30 p.m. Upon information and belief, the encounter occurred on June 23, 2006 at approximately 10:00 p.m. Admitted that Plaintiff was in the driver's seat of a vehicle registered to his mother. The remaining allegation contained in this paragraph is denied. 7. 8. 9. 10. Denied. Denied. Denied. Admitted that Plaintiff and two (2) female passengers were in a white Lincoln Town

car parked in the area of 24th and Tatnall Streets in the City of Wilmington. Admitted that the vehicle was registered to Plaintiff's mother. The remaining allegation contained in this paragraph is denied. 11. Denied that Defendant Prado targeted the 2400 block of Tatnall Street for "unknown

reasons." Defendants are without sufficient knowledge to admit or deny the remaining allegation. 12. Admitted that Plaintiff was asked to step out of the vehicle for officer safety. The

remaining allegations are denied. Further, this paragraph contains legal conclusions with regard to probable cause, reasonable suspicion, detention and arrest to which no response is required. To the extent that a response is required, the allegations are denied. 13. Admitted that Defendant Prado held Plaintiff's arm while he was exiting the vehicle,

but only with minimal force to prevent Plaintiff from fleeing. The remaining allegations contained in this paragraph are denied. 14. 15. Denied. Denied.

Case 1:07-cv-00125-JJF

Document 32

Filed 12/10/2007

Page 3 of 5

16.

Admitted that Defendant Prado and his partner seized 60 small baggies of marijuana

weighing 51.27 grams and 43 baggies of crack cocaine weighing 8.88 grams from Plaintiff's person. Admitted that Defendant Prado did not observe Plaintiff sell, purchase or consume the drugs. The remaining allegations are denied. 17. 18. 19. 20. Denied. Denied. Denied. Defendants lack sufficient knowledge to admit or deny whether Plaintiff's picture

appeared on Drug Mugs. The remaining allegations are denied. 21. 22. 23. this paragraph. V. LEGAL CLAIMS 24. This paragraph states a legal conclusion to which no response is required. To the Denied. Denied. Defendants lack sufficient knowledge to admit or deny the allegations contained in

extent that a response is required, the allegations contained in this paragraph are denied. 25. This paragraph states a legal conclusion to which no response is required. To the

extent that a response is required, the allegations contained in this paragraph are denied. 26. VI. Denied.

INJURY 27. 28. Denied. Defendants lack sufficient knowledge to admit or deny the allegations contained in

this paragraph.

Case 1:07-cv-00125-JJF

Document 32

Filed 12/10/2007

Page 4 of 5

29.

This paragraph states a legal conclusion to which no response is required. To the

extent that a response is required, the allegations contained in this paragraph are denied. 30. This paragraph states a legal conclusion to which no response is required. To the

extent that a response is required, the allegations contained in this paragraph are denied. STANDARD OF REVIEW MEMORANDUM OF LAW This entire section states a legal conclusion to which no response is required. To the extent that a response is required, any allegations contained in this section are denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 31. Plaintiff fails to state a claim upon which relief can be granted under the Federal

statutes cited by Plaintiff. SECOND AFFIRMATIVE DEFENSE 32. The actions and conduct of Defendants did not rise to the level of a Constitutional

violation and, therefore, Plaintiff did not suffer any infringement of his constitutional rights. THIRD AFFIRMATIVE DEFENSE 33. The actions and conduct of Defendants were objectively reasonable under the

circumstances which Defendants were aware, therefore, their actions did not violate Plaintiff's Constitutional rights. FOURTH AFFIRMATIVE DEFENSE 34. 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, and they are, therefore, entitled to qualified immunity.

Case 1:07-cv-00125-JJF

Document 32

Filed 12/10/2007

Page 5 of 5

FIFTH AFFIRMATIVE DEFENSE 35. Defendant Szczerba cannot be held liable under the doctrine of respondeat superior. SIXTH AFFIRMATIVE DEFENSE 36. The actions and conduct of Defendants were undertaken in the good faith

performance of their official duties, without wantonness or malice, and were therefore privileged and immune. 10 Del. C. §4010 et seq. SEVENTH AFFIRMATIVE DEFENSE 37. Plaintiff's damages, if any, are limited to 10 Del. C. §4013 et seq. EIGHTH AFFIRMATIVE DEFENSE 38. To the extent that Plaintiff may have been injured, Defendants were not the

proximate cause of any such injuries. NINTH AFFIRMATIVE DEFENSE 39. Plaintiff's injuries, if any, were proximately caused by his own wrongful, wanton,

willful, reckless, and/or negligent acts. WHEREFORE, Defendants demand that Plaintiff's Amended Civil Rights Complaint be dismissed with prejudice, and all costs and attorney's fees be assessed against Plaintiff and awarded to Defendants. /s/ Rosamaria Tassone Rosamaria Tassone, Esquire (I.D. #3546) First Assistant City Solicitor City of Wilmington Law Department Louis L. Redding City/County Building 800 N. French Street, 9th Floor Wilmington, DE 19801 Attorney for Defendants Michael J. Szczerba and David Prado's Dated: December 10, 2007

Case 1:07-cv-00125-JJF

Document 32-2

Filed 12/10/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : DAVID PRADO, SHAWN MARGYNIAK, : and MICHAEL SZCZERBA, : : Defendants. : RAYMOND E. BLAKE,

C.A. No. 07-125 JJF TRIAL BY JURY DEMANDED

CERTIFICATE OF SERVICE I, Rosamaria Tassone, Esquire, hereby certify that on this 10th day of December, 2007, I electronically filed Defendants Michael J. Szczerba and David Prado's Answer to the Amended Civil Rights Complaint with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following and that these documents are available for viewing and downloading from CM/ECF. A copy of this document was also served by U.S. Mail, postage pre-paid to the following individual:

Raymond E. Blake (SBI # 377092) Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

Raymond E. Blake 1823 W. 4th Street Wilmington, DE 19805

/s/ Rosamaria Tassone Rosamaria Tassone, Esquire (I.D. #3546) First Assistant City Solicitor City of Wilmington Law Department Louis L. Redding City/County Building 800 N. French Street, 9th Floor Wilmington, DE 19801 Attorney for Defendants Michael J. Szczerba and David Prado's