Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00505-SLR

Document 13

Filed 01/09/2008

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KEVIN APGAR, Plaintiff, v. WARDEN RAPHEAL WILLIAMS DR. BINNON, AND JAMES WELCH, Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 07-505-***LPS JURY TRIAL DEMANDED

STATE DEFENDANTS' ANSWER TO THE COMPLAINT COME NOW, defendants Warden Rapheal Williams and James Welch ("Answering Defendants") by and through their undersigned counsel, and hereby answer the Complaint of the plaintiff, Kevin Apgar ("Plaintiff"). (D.I. 2). Answering Defendants answer only those portions of the Complaint applicable to Answering Defendants as follows: STATEMENT OF CLAIM 1. 2. Denied. The allegations contained in No. 2 under Statement of Claim are not directed to

Answering Defendants and thus no response is required. To the extent that a response is required, the allegations are denied. 3. Denied.

Attachment to Complaint The allegations contained in the attachment to the Complaint that starts with "(Dr. Binnon)" at the top of the page are not directed to Answering Defendants and thus no response is required. To the extent that a response is required, the allegations are denied.

Case 1:07-cv-00505-SLR

Document 13

Filed 01/09/2008

Page 2 of 4

Answering Defendants specifically deny any wrongful conduct. Answering Defendants specifically deny that they caused any injury claimed by Plaintiff. Answering Defendants

specifically deny that they were deliberately indifferent to any serious medical condition of Plaintiff. 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. Amendment. 5. 6. Answering Defendants are entitled to qualified immunity. As to any claims under state law, Answering Defendants are entitled to immunity Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff has failed to exhaust his administrative remedies. Answering Defendants are immune from liability under the Eleventh

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

immunity in their official capacity. 8. Answering Defendants cannot be held liable in the absence of personal

involvement for the alleged constitutional deprivations. 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.

-2-

Case 1:07-cv-00505-SLR

Document 13

Filed 01/09/2008

Page 3 of 4

10.

Answering Defendants, in their official capacity, 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. 11. 12. 13. Insufficiency of service of process. Insufficiency of process. Lack of jurisdiction over the person and subject matter.

WHEREFORE, the Answering Defendants respectfully requests that judgment be entered in their favor and against Plaintiff as to all claims and that attorney fees be awarded to the Answering Defendants. 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: January 9, 2008 Attorney for State Defendants

-3-

Case 1:07-cv-00505-SLR

Document 13

Filed 01/09/2008

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on January 9, 2008, I electronically filed State Defendants' Answer to the Complaint with the Clerk of Court using CM/ECF and have mailed by United States Postal Service, the document to the following non-registered participant: Kevin Apgar SBI # 302981 Howard R. Young Correctional Institution P.O Box 9561 Wilmington, DE 19809 /s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

-4-