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

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, CIV 03-1819-PHX-JAT(LOA) Plaintiff vs. C. Miles, et. al., Defendants Defendant Earl R. Scalet (Scalet), by and through his undersigned counsel, for his Answer to plaintiff's Second Amended Complaint, admits, denies and alleges as follows: I. This answering Defendant deny each and every allegation of Plaintiff's Second Amended Complaint which is not specifically admitted, denied or otherwise plead to. II. COUNT l This answering Defendant denies the allegations contained in Count I of Plaintiff's, Second Amended Complaint. In further response, this defendant denies that plaintiff was treated in a distinct fashion or retaliated against because of his filing of grievances or other protected conduct. DEFENDANT EARL R. SCALET'S ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

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III COUNT ll This answering Defendant denies the allegations contained in Count II of Plaintiff's Second Amended Complaint. IV. COUNT Ill This answering Defendant denies the allegations contained in Count III of Plaintiff's, Second Amended Complaint. AFFIRMATIVE DEFENSES
Plaintiff has failed to state a claim upon which relief may be granted. Earl R. Scalet has qualified immunity from civil liability as a government official

performing discretionary functions, and therefore, may not be sued for the conduct alleged in plaintiff's complaint. At all times relevant hereto, Earl R. Scalet was acting in his official governmental capacity and in compliance with the law. 3. Plaintiff's allegations that this defendant labeled him as a "snitch" lacks a factual

basis. Furthermore, as a matter of law these allegations are insufficient to state a Eighth Amendment violation or a constitutional tort under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), therefore, these allegations must be dismissed.

4.

Plaintiff did not suffer any actual injury. The plaintiff did not suffer any

actual injury. Further, Powell has failed to establish that Scalet knew that Powell faced a substantial risk of serious harm or that Scalet was deliberately indifferent to such a risk. 5. this lawsuit. 6. This Defendant alleges that plaintiff's allegations arose as a result of his This defendant was acting in good faith, thereby warranting dismissal of

own negligence or intentional conduct and not the acts or omissions of this Defendant, thereby warranting dismissal of this lawsuit. 7. This defendant alleges that plaintiff was contributorily negligent, thereby

reducing or eliminating damages owed this defendant.

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8.

This defendant alleges that someone other than this defendant is responsible

for plaintiff's alleged injuries, thereby reducing or eliminating damages owed by this defendant. 9. This answering defendant was, at all times relevant to this action, an

employee of the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement (BICE). He was at no time relevant to this litigation, an employee of the United States Bureau of Prisons or the Corrections Corporation of America. 10. This defendant alleges that plaintiff has failed to set forth a mental or

emotional injury suffered while in custody that is medically associated with a non-de minimis physical injury 42 U.S.C.A. § 1997e(e), in regard to his allegation that a Constitutional violation has occurred, thereby warranting dismissal of this lawsuit. 11. This answering defendant alleges that plaintiff's claims are barred by the

statute of limitations. 12. This answering defendant alleges that plaintiff's allegations that this

defendant violated the provisions of 5 U.S.C.A. 552 (b) (Privacy Act) are specious and are expressly barred by 5 U.S.C.A. 552 (b) (10 and (b) (3), therefore said allegations lack a good faith basis in law and/or fact and must be dismissed. 13. This answering defendant alleges that the plaintiff is unable to show the

requisite intent required in order to state a claim for deliberate indifference, thereby requiring dismissal of this action. 14. This answering defendant alleges that plaintiff has failed to exhaust his

administrative remedies. 15. This answering defendant alleges that plaintiff has failed to establish that

he suffered a type of atypical, significant deprivation which might conceivably create a liberty interest. 16. This answering defendant alleges that plaintiff's accusations against this

defendant are based solely on conjecture, speculation, and his unsubstantiated personal

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opinions which are insufficient to state a claim upon which relief can be granted, thereby warranting dismissal of this lawsuit. 17. Although this answering defendant does not presently have facts in support

of the following defenses, this defendant wishes to assert the following defenses should subsequent discovery reveal these defenses are appropriate. Specifically, the following affirmative defenses set forth in Rule 8(c), F.R.C.P. and Rule 12, including but not limited to arbitration and award, assumption of risk, contributory negligence, duress, estoppel, fraud, illegality, laches, release, res judicata, statute of frauds, waiver, insufficiency of process and insufficiency or service of process. WHEREFORE, having fully answered plaintiff's Second Amended Complaint, this answering defendant requests that he be dismissed, and that this defendant be awarded costs and attorneys' fees, and for such other and further relief as this Court deems just and proper. DATED this 15th day of September, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on September 15, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy James Bojanoski Daniel Patrick Struck Jones, Skelton & Hochuli, PLC 2901 N. Central Ave, Suite 800Phoenix, Arizona 85012

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Attorneys for Defendants Carson, Gluch, Talamantes, Miles, Ponce s/John R. Mayfield Office of the U.S. Attorney

I hereby certify that on September 15, 2006, I served the attached document by mail, on the following, who are not registered participants of the CM/ECF System: Charles (Carlos) Arthur Powell # 10090-023 D/U Federal Correctional Institution Victorville Medium # 1 P.O. Box # 5300 Adelanto, California 92301-5300 Marked "LEGAL MAIL" s/ John R. Mayfield Office of the U.S. Attorney

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