case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 1 of 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION NICHOLAS KINCADE, ) ) Plaintiff, ) ) v. ) NO: 2:14-CV-234-PPS-JEM ) THOMAS DAVIDSON, in his ) individual and official capacity, and ) CITY OF LAFAYETTE, ) ) Defendants. ) ANSWER AND AFFIRMATIVE DEFENSES OF CITY OF LAFAYETTE Defendant City of Lafayette, by counsel, answers the Complaint [DE 1] as follows. Each paragraph of the Complaint will be set out in italics followed by defendant s response. Answer INTRODUCTION 1. Plaintiff seeks money damages against Defendant for violation of rights as guaranteed under the United States Constitution. Response: Defendant denies that plaintiff is entitled to money damages and denies that defendant violated plaintiff s rights. JURISDICTION AND VENUE 2. This Court has original jurisdiction pursuant to 28 U.S.C. 1331 over Plaintiff s causes of action arising under the Constitution of the United States and 42 U.S.C. 1983. Response: Defendant admits the subject matter jurisdiction of the Court to hear the claims asserted in the Complaint. 1
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 2 of 12 3. Venue lies in the United States District Court for the Northern District of Indiana because all, or a substantial portion, of the events or omissions giving rise to this Complaint occurred in Lafayette, Tippecanoe County, Indiana. See 28 U.S.C. 1391(b). Response: Defendant admits that the Northern District of Indiana is the proper venue for this action, but denies that the Hammond Division is the proper division. PARTIES 4. Plaintiff, Nicholas Kincade, is an adult citizen who resides in Lafayette, Indiana. 5. At the time of the incident, which gave rise to this complaint, Thomas Davidson was a Lieutenant with the Lafayette Police Department ( LPD ). Following and as a result of this incident, he was demoted to the rank of Officer. At all times alleged herein, Officer Davidson was a duly sworn police officer with LPD with full police powers. 6. The City of Lafayette is a municipality located in Tippecanoe County, Indiana. LPD is a duly authorized department within the City of Lafayette. FACTUAL BACKGROUND 7. In 2010, Nicholas Kincade was involved in an accident, which resulted in him being a paraplegic. Response: Defendant lacks knowledge or information sufficient to form a belief as to the allegations of paragraph 7. 2
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 3 of 12 8. Because of his physical limitations, Nicholas utilizes a motorized wheelchair. In or around October of 2013, Nicholas weighed approximately 200 pounds and his wheelchair weighed approximately three hundred pounds. Response: Defendant admits that on October 1, 2013, plaintiff was using a motorized wheelchair that was too heavy for two persons to lift. Defendant lacks knowledge or information sufficient to form a belief as to the remaining allegations of paragraph 8. 9. Nicholas has limited manual dexterity in both hands, which always remain closed. Response: Defendant lacks knowledge or information sufficient to form a belief as to the allegations of paragraph 9. 10. On or about October 1, 2013, Nicholas was a student at a charter school located in Lafayette. Response: Defendant lacks knowledge or information sufficient to form a belief as to the allegations of paragraph 10. 11. A school employee called police to the scene. 12. Then Lt. Davidson approached Nicholas while was outside on a public sidewalk and searched his backpack without a warrant. 13. During the encounter Lt. Davidson and Nicholas spoke to one another and exchanged words. Response: Defendant admits that Lt. Davidson and plaintiff conversed. Defendant denies any other allegation or implication of paragraph 13. 3
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 4 of 12 14. While Nicholas was located on a public sidewalk and attempting to maneuver his wheel chair to the bus stop located nearby, Lt. Davidson shoved and battered Nicholas, which toppled the wheelchair and caused Nicholas to fall to the ground. Response: Defendant admits that plaintiff and Lt. Davidson were on a sidewalk, that plaintiff ignored an order to vacate the premises, that plaintiff ran his wheelchair directly toward and in contact with Lt. Davidson and running over Lt. Davidson s foot, and that Lt. Davidson responded by pushing plaintiff away causing the wheelchair to tip and plaintiff to fall on the ground. Defendant denies the remaining allegations and implications of paragraph 14. 15. After the battery, Lt. Davidson shouted and announced, now you re going to jail or words to that effect. Response: Defendant admits that one of the officers on the scene said now you re going to jail but denies the remaining allegations of paragraph 15. 16. Prior to the battery and Lt. Davidson s use of force, Nicholas was complying with police and doing what they had asked him to do. 17. Nicholas was handcuffed by police and eventually dragged by officers to a nearby police car. Response: Defendant admits that plaintiff was handcuffed and pulled by officers to lean against a police car until an ambulance could arrive to transport plaintiff. Defendant denies the remaining allegations of paragraph 17. 18. The incident was caught on video through an in car camera located in another officer s patrol car. 4
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 5 of 12 Response: Defendant admits that portions of the incident were captured on video by a camera in a police car on the scene. Defendant denies the remaining allegations of paragraph 18. 19. Lt Davidson was the highest ranking officer who responded to the scene and interacted with Nicholas that day. 20. Nicholas suffered physical injuries as a result the incident. 21. Nicholas s motorized wheelchair was broken as a result of the incident. 22. Nicholas suffered significant humiliation and embarrassment as a result of Lt. Davidson s actions and/or the actions of other officers on the scene. 23. Nicholas was charged with charged with battery against a law enforcement officer as a Class D felony in cause number 79D05-1310-FD-540 on or about October 29, 2013. However, that charge was later dismissed on or about March 6, 2014, by a deputy prosecuting attorney. LEGAL CLAIMS COUNT I Fourth Amendment Violation Lt. Davidson 24. Plaintiff incorporates by reference the allegations of the foregoing paragraphs as though set forth at length herein. 5
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 6 of 12 25. Lt. Davidson is a person within the meaning of 42 U.S.C. 1983. 26. Lt. Davidson actions and/or omissions were taken under color of state law based on his authority and official position as an officer with LPD. 27. The Fourth Amendment to the United States Constitution provides that people shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. 28. Lt. Davidson actions or omissions constituted a violation and a deprivation of Plaintiff s rights under the Fourth and Fourteenth Amendments to the United States Constitution. 29. Lt. Davidson s actions, omission, or failures caused Plaintiff to suffer harm. 30. Plaintiff pursues this claim for unlawful arrest and excessive force in violation of the Fourth Amendment. 31. Lt. Davidson s violated Nicholas s right to be free from interference from the zone of privacy as recognized by the Fourth and Ninth Amendments. 32. Lt. Davidson s actions violated Nicholas s right to equal protection of the laws as guaranteed by the Fourteenth Amendment. 6
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 7 of 12 33. Lt. Davidson s actions or omission were made knowingly, intentionally, and/or with reckless disregard for Plaintiff s rights. 34. Lt. Davidson s conduct is actionable under 42 U.S.C. 1983. COUNT II First Amendment Violation Lt. Davidson 35. Plaintiff incorporates by reference the allegations of the foregoing paragraphs as though set forth at length herein. 36. Officer Davidson is a person within the meaning of 42 U.S.C. 1983. 37. Officer Davidson s actions and/or omissions were taken under color of state law based on his authority and official position as an officer with LPD. 38. The First Amendment to the United States Constitution provides for freedom of speech and expression as well as other protected rights. 39. [T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out. Hartman v. Moore, 547 U.S. 250, 256 (2006). 7
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 8 of 12 40. The Plaintiff was exercising rights protected under the First and Fourteenth Amendments when he spoke with Lt. Davidson. 41. Lt. Davidson unlawfully retaliated and penalized Plaintiff for exercising his rights under the First Amendment to the United States Constitution. 42. Lt. Davidson s deprivations of Plaintiff s First Amendment rights caused Plaintiff to suffer harm. 43. Lt. Davidson s actions or omissions were made knowingly, intentionally, and/or with reckless disregard for Plaintiff s rights. 44. Lt. Davidson s conduct is actionable under 42 U.S.C. 1983. COUNT III Americans with Disabilities Act Violation 42 U.S.C. 12132 All Defendants 45. Plaintiff incorporates by reference the allegations of the foregoing paragraphs as though set forth at length herein. Response: Defendant likewise incorporates its responses to the foregoing paragraphs. 46. No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 12132. 8
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 9 of 12 Response: Defendant admits the text of the Americans With Disabilities Act which speaks for itself. 47. Nicholas is an individual with a recognized disability. Nicholas is qualified to participate in or receive the benefit of the services provided by LPD and its officers. Response: Defendant admits that plaintiff is a disabled person within the meaning of the ADA. Defendant denies the remaining allegations of paragraph 47. 48. The City of Lafayette and LPD are public entities within the meaning of 42 U.S.C. 12131(1)(B). 49. Nicholas was excluded from or denied the benefits of LPD s services or otherwise discriminated against by the public entity because of his disability. 50. Nicholas s was subjected to a wrongful arrest based on his disability, not for any criminal activity. 51. LPD failed to reasonably accommodate Nicholas s disability during the investigation or his arrest, which caused him to suffer greater injury or indignity than other arrestees. 52. Lt. Davidson intentionally acted on the basis of Nicholas s disability. 53. Lt. Davidson refused to provide a reasonable modification or accommodation of Nicholas s disability. He was deliberately indifferent to Nicholas s recognized disability. 9
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 10 of 12 54. Lt. Davidson arrested Nicholas because of legal conduct related to his disability. 55. Nicholas was harmed as a result of Lt. Davidson, the City, and the Department s unlawful actions. PRAYER FOR RELIEF 56. Plaintiff respectfully requests: a. compensatory and punitive damages; b. reasonable attorney s fees pursuant to 42 U.S.C. 1988 and/or 42 U.S.C. 12205; c. all appropriate interest; d. all appropriate injunctive relief; e. the costs incurred in the prosecution of this action; and f. all just and proper relief. Response: Defendant denies that plaintiff is entitled to any relief. Any allegation of the Complaint not expressly admitted above is denied. Affirmative Defenses The assertion of an affirmative defense does not concede or assume the burden of proof thereon. The right to amend as discovery progresses is reserved 1. The Complaint fails to state a claim upon which relief may be granted. 2. Punitive damages are not permitted against the City of Lafayette. 3. Accommodation of plaintiff s disability under the facts and circumstances of this case would have imposed an undue burden on the City of Lafayette. 10
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 11 of 12 4. Plaintiff incurred or assumed the risk of his own negligent or otherwise tortious conduct. 5. Lt. Davidson s actions were legally justified by the need to use reasonable physical force. 6. Lt. Davidson s actions were legally justified as reasonably necessary to defend himself or others. 7. Plaintiff failed to take reasonable steps to mitigate his damages. Respectfully submitted, STEPHENSON MOROW & SEMLER s/ Wayne E. Uhl Wayne E. Uhl, Attorney No. 14463-49 Counsel for Defendant City of Lafayette 11
case 2:14-cv-00234-PPS-JEM document 15 filed 09/21/14 page 12 of 12 CERTIFICATE OF ELECTRONIC FILING AND SERVICE I hereby certify that on September 21, 2014, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all person(s) registered for electronic filing by operation of the Court s electronic filing system. Scott L. Barnhart, barnhart@kbindy.com KEFFER BARNHART, LLP 230 East Ohio St., Ste. 600 Indianapolis, IN 46204 Caren L. Pollack, cpollack@pollacklawpc.com POLLACK LAW FIRM, P.C. 10333 N. Meridian St., Ste. 111 Indianapolis, IN 46290 s/ Wayne E. Uhl Wayne E. Uhl STEPHENSON MOROW & SEMLER 3077 East 98th Street, Suite 240 Indianapolis, Indiana 46280 Phone: (317) 844-3830 Fax: (317) 573-4194 Email: wuhl@stephlaw.com 14-6609/answer.doc/mmi 12