Rutherford Co Answer to Demario Complaint

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

DEMARIO N. HARRIS, SR., ))

Plaintiff, ) No. 3:14-2304)

v. ) Judge Todd J. Campbell)

ROBERT ARNOLD, in his official ) Magistrate Judge Browncapacity as Sheriff of Rutherford )County, Tennessee, )

)JAMES STEPHEN VANDERVEER, )in his individual and official capacity )as a Deputy Sheriff for Rutherford )County, Tennessee, )

)JESSICA LEIGH GREEN, in her individual )and official capacity as a Deputy )Sheriff for Rutherford )County, Tennessee, )

)Defendant. )

ANSWER AND AFFIRMATIVE AND OTHER DEFENSES

COME NOW Defendants, by and through counsel, and in response to the

Plaintiffs Complaint, would state unto this Honorable Court as follows:

FIRST DEFENSE

Pending investigation and in order to avoid waiver, Defendants aver that some

or all of the averments in the Complaint fail to state a claim against Defendants upon

which relief can be granted.

Case 3:14-cv-02304 Document 12 Filed 01/28/15 Page 1 of 18 PageID #: 27

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SECOND DEFENSE

Without waiving their affirmative and other defenses, Defendants respond to the

allegations and averments contained in the Complaint as follows:

In response to the paragraph identified as Roman numeral I and labeled

Introduction, Defendants deny that Plaintiff was assaulted at the Rutherford County

Sheriffs Department and Defendants deny that any action or inaction on their part

resulted in a violation of law.

1. The averments set forth in paragraph number one (1) set forth a legal

conclusion to which no response is required, however, to the extent the same may be

construed as an averment of wrongdoing or violation of law on the part of the

Defendants, the same is denied.

2. In response to paragraph number two (2), Defendants admit that the

allegations set forth in Plaintiffs Complaint are alleged to have occurred at the

Rutherford County Sheriffs Department, but to the extent this averment implies that

there was any wrongdoing or violation of the law on the part of the Defendants, the

same is denied.

3. Defendants are without knowledge or information sufficient to form a

belief as to the truth of the matter asserted in paragraph number three (3), and therefore

the same is denied.

4. The averments set forth in paragraph number four (4) are admitted.

5. The averments set forth in paragraph number five (5) are admitted.

6. The averments set forth in paragraph number six (6) are admitted.


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7. The averments set forth in paragraph number seven (7) are admitted.

8. The averments set forth in paragraph number eight (8) are admitted in

part and denied in part. It is admitted that Plaintiff was ultimately delivered to the

Rutherford County Sheriffs Department on December 9, 2013, but Defendants are

without knowledge or information sufficient to form a belief as to where he was at the

time of his arrest or where he was taken prior to his delivery to the Rutherford County

Sheriffs Department.

9. The averments set forth in paragraph number nine (9) are admitted.

10. The averments set forth in paragraph number ten (10) are admitted.

11. The averments set forth in paragraph eleven (11) are admitted. In further

response, when Plaintiff arrived at the Rutherford County Sheriffs Department he was

delivered in a Murfreesboro Police Department van which indicates that he had been

extremely combative, uncooperative, and aggressive with the arresting agency. Upon

arrival at the Rutherford County Sheriffs Department, officers with the Murfreesboro

Police Department requested that a four-point restraint chair be procured as Plaintiff

had been particularly violent, aggressive, and uncooperative in the arrest process. At

the time Plaintiff was placed in a four-point restraint chair, Plaintiff was extremely

aggressive, violent, combative, and noncompliant, placing both himself and the officers

involved in danger of physical harm.

12. The averments set forth in paragraph number twelve (12) are denied. In

further response, at no point in time did the Plaintiff comply with all directions and


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instructions issued by correctional officers. To the contrary, Plaintiff was extremely

aggressive, combative, violent, and noncompliant.

13. The averments set forth in paragraph number thirteen (13) are admitted in

part and denied in part. It is admitted that after Plaintiff was placed in a four-point

restraint chair and that Defendant Vanderveer sprayed him with a chemical agent

(Freeze + P), but it is denied that doing so caused severe pain. In further response, the

chemical agent was applied to Plaintiff after Plaintiff, who continued to be aggressive,

combative, violent and noncompliant, tried to escape the restraint chair and refused to

cooperate with attempts to secure Plaintiff in the restraint chair . Plaintiff, despite being

secured in the chair, through his violent, noncompliant, and combative actions,

managed to remove his leg from a restraint which required the deputies attending him

to attempt to secure his leg to the restraint chair. Plaintiff was able to rock and move the

restraint chair in the cell placing both himself and the deputies in danger. Plaintiff was

given multiple warnings and instructions to calm down and comply with the detention

officersefforts to re-secure his leg. Deputy Vanderveer instructed the Plaintiff that if he

did not place his leg back in the restraint chair and cooperate, he would be sprayed with

a chemical agent. Plaintiff continued to resist and fail to comply, at which time

Defendant Vanderveer applied a small burst of chemical agent to Plaintiff to secure his

compliance with the lawful order.

14. The averments set forth in paragraph number fourteen (14) are denied. In

further response, Defendants incorporate by reference their response to paragraph

number thirteen (13) of Plaintiffs Complaint.


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15. The averments set forth in paragraph number fifteen (15) are admitted in

part and denied in part. It is admitted that Defendant Green stood next to Plaintiff

while he was confined to the four-point restraint chair, but it is denied that Defendant

Vanderveer illegally administered a chemical agent into the eyes of the Plaintiff. In

further response, Defendants incorporate by reference their response to paragraph

number thirteen (13) of Plaintiffs Complaint.

16. The averments set forth in paragraph number sixteen (16) are denied. In

further response, Plaintiff was examined by medical staff at the Rutherford County

Sheriffs Department following application of the chemical agent.

17. The averments set forth in paragraph number seventeen (17) are admitted.

18. The averments set forth in paragraph number eighteen (18) are denied.

19. Defendants re-assert and incorporate their responses to the above-quoted

paragraphs.

20. The averments set forth in paragraph number twenty (20) are denied.

21. The averments set forth in paragraph number twenty-one (21) are denied.

22. The averments set forth in paragraph number twenty-two (22) are denied.

23. The averments set forth in paragraph number twenty-three (23) are

denied.

24. The averments set forth in paragraph number twenty-four (24) are denied.

25. The averments set forth in paragraph number twenty-five (25) are denied.

26. The averments set forth in paragraph number twenty-six (26) are denied.


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27. The averments set forth in paragraph number twenty-seven (27) are

denied.

28. The averments set forth in paragraph number twenty-eight (28) are

denied.


paragraphs.

30. The averments set forth in paragraph number thirty (30) are denied.

31. The averments set forth in paragraph number thirty-one (31) are denied.

32. The averments set forth in paragraph number thirty-two (32) are denied.

33. The averments set forth in paragraph number thirty-three (33) are denied.

34. The averments set forth in paragraph number thirty-four (34) are denied.

35. The averments set forth in paragraph number thirty-five (35) are denied.

36. The averments set forth in paragraph number thirty-six (36) are denied.

37. The averments set forth in paragraph number thirty-seven (37) are denied.

38. The averments set forth in paragraph number thirty-eight (38) are denied.


paragraphs.

40. The averments set forth in paragraph number forty (40) of Plaintiffs

Complaint, and any subparts thereof, are denied.

Defendants deny that Plaintiff is entitled to any relief whatsoever and specifically

deny that Plaintiff is entitled to any of the relief set forth in Roman numeral VII of

Plaintiffs Complaint.


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Any and all such other or further averments or allegations set forth in the

Complaint neither heretofore expressly admitted nor denied, and any and all averments

set forth in the Complaint that are inconsistent with the Defenses set forth in this

Answer, are hereby denied.

THIRD DEFENSE

Plaintiff was not deprived of a right, privilege or immunity secured by the

United States Constitution or other Federal law.

FOURTH DEFENSE

The claims against Robert Arnold, James Vanderveer, and Jessica Green in their

official capacities are actions against Rutherford County itself. Campbell v. Anderson

County, 695 F. Supp. 2d 764, 770 (E.D. Tenn. 2010). A Section 1983 claim against a

governmental entity cannot be based on a theory of vicarious liability. Rather,

Rutherford County may only be sued under Section 1983 for an unconstitutional or

illegal municipal policy or custom and not for the unconstitutional conduct of its

employees. Ocala v. Metro Government of Nashville, 2012 WL 3779475, at *5. (M.D. Tenn.

2012).

FIFTH DEFENSE

To the extent Defendants have been sued in their individual capacities, they are

all entitled to qualified immunity as their conduct did not violate clearly established

constitutional rights of which a reasonable person would have known.


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SIXTH DEFENSE

There was no policy, custom, or lack of a policy or custom, that was the alleged

moving force behind the alleged deprivation of Plaintiffs rights, nor did the alleged

deprivation occur due to deliberate indifference.

SEVENTH DEFENSE

The force applied to the Plaintiff was applied in a good faith effort to maintain

and restore discipline; it was not applied maliciously or sadistically to cause harm.

EIGHTH DEFENSE

Plaintiff is not entitled to Punitive damages as Defendants did not act with an

evil motive or intent, nor does the conduct at issue demonstrate a reckless disregard for

or indifference to federally protected rights.

NINTH DEFENSE

Defendants did not intentionally discriminate against Plaintiff because of his

membership in a protected class or otherwise.

TENTH DEFENSE

Pending investigation and in order to avoid waiver, Defendants aver that all of

Plaintiffs claims are barred by the statute of limitations and/or statute of repose

applicable to the same.

ELEVENTH DEFENSE

Defendants aver that some or all of Plaintiffs claims are barred by Plaintiffs

failure to exhaust his administrative remedies as required by 42 U.S.C. 1997e.


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TWELFTH DEFENSE

Defendants aver that they are entitled to recover attorneys fees from Plaintiff

pursuant to 42 U.S.C. 1988.

THIRTEENTH DEFENSE

Defendants aver that some or all of Plaintiffs claims are barred by 42 U.S.C.

1997e(e) because of the absence of any physical injury to Plaintiff.

FOURTEENTH DEFENSE

Defendants aver that Plaintiff does not have standing to bring some or all of the

claims contained in Plaintiffs Complaint.

FIFTEENTH DEFENSE

Pending investigation and in order to avoid waiver, Defendants aver that all or

some of Plaintiffs claims are barred by the doctrine of res judicata, collateral estoppel,

and/or equitable estoppel.

SIXTEENTH DEFENSE

Defendants aver that Plaintiff was not deprived of a right secured by the

Constitution or laws of the United States by a person acting under color of state law.

SEVENTEENTH DEFENSE

Defendants aver that any harm alleged in Plaintiffs Complaint is not sufficiently

serious under the Eighth Amendment and, further, that Defendant was not deliberately

indifferent to any alleged harm.


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EIGHTEENTH DEFENSE

Defendants deny that they are responsible for any action or omission that was in

violation of Plaintiffs constitutional rights or that was otherwise improper or in

violation of federal or state law.

NINETEENTH DEFENSE

Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.

1983 because of the lack of any violation of law and/or because of the lack of any

policy or custom which was the moving force behind an alleged violation of law.

TWENTIETH DEFENSE


1983 because of the lack of an affirmative link between any alleged policy or custom of

Defendants and the particular constitutional violation alleged in the Complaint.

TWENTY-FIRST DEFENSE


1983 because of the absence of an express policy adopted by Defendants that was the

moving force behind any alleged constitutional deprivation or violation of law.

TWENTY-SECOND DEFENSE


1983 because of the absence of a clear and persistent pattern of constitutional

violations similar to that alleged by Plaintiff of which Defendants were aware or should

have been aware.


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TWENTY-THIRD DEFENSE


1983 because Defendant did not fail to institute a policy despite an obvious need to do

so such that Defendants were deliberately indifferent in failing to adopt such policy.

TWENTY-FOURTH DEFENSE


1983 because Defendants did not tacitly approve of any unconstitutional conduct,

policy, custom, or other law that was the moving force behind the alleged constitutional

violation.

TWENTY-FIFTH DEFENSE


1983 because Defendants were properly trained and supervised.

TWENTY-SIXTH DEFENSE

Defendants aver that they did not breach any duty to Plaintiff, nor do their

alleged actions or omissions constitute factual, legal, and/or proximate cause of

Plaintiffs alleged damages.

TWENTY-SEVENTH DEFENSE


1983 because there are no prior instances of unconstitutional conduct demonstrating

that they had notice that any training or supervision was deficient and likely to cause

injury.


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TWENTY-EIGHTH DEFENSE


1983 because Defendants did not fail to train its employees to handle recurring

situations presenting an obvious potential for a constitutional violation.

TWENTY-NINTH DEFENSE

Defendants aver that they cannot be held liable because they are entitled to

qualified immunity and assert their qualified immunity defense.

THIRTIETH DEFENSE

Defendants aver that punitive damages are not recoverable against them as a

matter of law pursuant to City of Newport v. Fact Concerts, 453 U.S. 247 (1981).

THIRTY-FIRST DEFENSE

Defendants aver that an award of punitive damages is violative of the due

process of law protections of the United States Constitution and the Constitution of the

State of Tennessee.

THIRTY-SECOND DEFENSE

Defendants aver that such claim for punitive damages cannot be sustained

because an award of punitive damages without proof of every element of such claim

beyond a reasonable doubt would violate Defendantsdue process rights under the

Fourteenth Amendment to the United States Constitution and under the due process

provisions of the Tennessee Constitution.

THIRTY-THIRD DEFENSE

Alternatively, unless Defendantsliability for punitive damages and the


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appropriate amount of punitive damages to be assessed are required to be established

by clear and convincing evidence, any award of punitive damages would

violate Defendantsdue process rights guaranteed by the Fourteenth Amendment to

the United States Constitution and by the due process provisions of the Tennessee

Constitution.

THIRTY-FOURTH DEFENSE


because any award of punitive damages without requiring a bifurcated trial as to all

punitive damages issues would violate Defendant's due process rights guaranteed by

the Fourteenth Amendment to the United States Constitution and the due process


THIRTY-FIFTH DEFENSE


because an award of punitive damages subject to no predetermined upper limit, either

as a maximum multiple of compensatory damages or an absolute maximum amount,

would violate Defendantsdue process rights guaranteed by the Fourteenth

Amendment to the United States Constitution and by the due process of law provisions

of the Tennessee Constitution and may result in a violation of Defendantsrights not to

be subjected to an excessive award in violation of the excessive fines provisions of the

Tennessee Constitution.

THIRTY-SIXTH DEFENSE



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because an award of punitive damages by a jury that (1) is not provided

standards of sufficient clarity and uniformity for determining the appropriateness, or

the appropriate size, of a punitive damages award, (2) is not instructed on the limits of

punitive damages imposed by the applicable principles of deterrence and punishment

and is not instructed to award only that amount of punitive damages as reflects

a necessary relationship between the amount of punitive damages and the actual harm

in question, (3) is not expressly prohibited from awarding punitive damages, or

determining the amount of an award of punitive damages, or determining the amount

of an award of punitive damages, in whole or in part, on the basis of invidiously

discriminatory characteristics, (4) is permitted to award punitive damages under

standards for determining liability for, and the amount of, punitive damages that are

vague and arbitrary and do not define, with sufficient clarity to give advance notice

to a potential defendant of (a) the prohibited conduct or mental state that permits an

award of punitive damages, and (b) the amount of punitive damages permissible, and

(5) is not subject to trial and appellate court review on the basis of uniform and

objective standards, would violate Defendantsdue process and equal protection rights

guaranteed by the Fourteenth Amendment to the United States Constitution and by the

due process and equal protection provisions of the Tennessee Constitution and may

result in an excessive punitive damages award in violation of the excessive fines


THIRTY-SEVENTH DEFENSE



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because an award of punitive damages without affording to Defendantsprotections

similar to those that are accorded to criminal defendants, including protection against

unreasonable searches and seizures, double jeopardy or impermissible multiple

punishments, and compelled self-incrimination, and the right to confront

adverse witnesses, to compulsory process for favorable witnesses, and to the effective

assistance of counsel on every element of an award of punitive damages would

violate Defendantsrights under the Fourteenth Amendment to the United States

Constitution and the Fourth, Fifth, and Sixth Amendments as incorporated into the

Fourteenth Amendment to the United States Constitution and the provisions providing

for due process, the rights to confront witnesses, to compulsory process for

favorable witnesses, and to effective assistance of counsel, and protection against

unreasonable searches and seizures, double jeopardy, and compelled self-incrimination

of the Tennessee Constitution.

THIRTY-EIGHTH DEFENSE

Defendants invoke and, alternatively, move the Court to grant them any and all

procedural relief afforded litigants against whom a claim for punitive damages is made

in accordance with Tennessee law, including but not limited to (1) imposition on

plaintiff of the burden of proving the entitlement to punitive damages by clear

and convincing evidence, (2) a bifurcated trial to first determine liability for

punitive damages in accordance with the specific standards enunciated in Hodges v. S.

C. Toof & Co., 833 S.W.2d 896, 900-02 (Tenn. 1992), and (3) a limitation on the amount of

punitive damages that may be awarded in proportion to the amount of compensatory


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damages.

THIRTY-NINTH DEFENSE

Defendants aver that such claim for punitive damages are governed by all

standards of limitations regarding the determination and/or enforceability of punitive

damages awards as established in the decisions of BMW of North America v. Gore, 517

U.S. 559 (1996), Cooper Industries v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), and

State Farm Automobile Insurance Company v. Campbell, 123 S. Ct. 1513 (2003), as well as

any other relevant or applicable statutory or case law.

FORTIETH DEFENSE

Defendants aver that to the extent the Complaint makes a prayer for punitive

damages, such claim for punitive damages must be adjudicated by the Court rather than

the jury pursuant to Cooper Industries v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).

FORTY-FIRST DEFENSE

Pending investigation and in order to avoid waiver, Defendants raise the

affirmative defense of comparative fault in that Plaintiff contributed to his own injuries

such that Defendants are not liable to Plaintiff. Further, Defendants aver that Plaintiffs

claims are barred by the comparative fault doctrine because Plaintiff is more than forty-

nine percent (49%) at fault for Plaintiffs damages, or alternatively Plaintiffs damages

should be reduced in direct proportion to the percentage of Plaintiffs fault.


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FORTY-SECOND DEFENSE

Any averments not heretofore admitted or denied, or otherwise explained, are

here and now denied as if they were set forth specifically and denied.

WHEREFORE, having fully responded to the averments contained in the

Complaint, Defendants pray that they be hence dismissed from this action with all costs

taxed to Plaintiff. Failing dismissal, Defendants pray for a trial by a jury of twelve (12)

on all jury issues joined by the pleadings and for such further, general relief to which

they might be entitled.

Respectfully submitted,

Cope, Hudson, Reed &McCreary, PLLC

By:/s/ E. Evan Cope__________E. Evan Cope, #21436Blake A. Garner, #31129

16 Public Square NorthP.O. Box 884Murfreesboro, TN 37133(615) 893-5522

[email protected]@mborolaw.com


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing

document was sent to the following via the District Courts electronic filing system:

David L. Cooper, Esq.Third Avenue North Building

208 Third Avenue North, Suite 300Nashville, TN 37201

Aubrey T. Givens, Esq.501 Union Street, Suite 307Nashville, TN 37219

on this 28th day of January, 2015.

/s/ E. Evan Cope_______E. Evan Cope


Documents

Rutherford Co Answer to Demario Complaint