Case 1:08-cv-01185-MV-SMV Document 30

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO STEPHEN SLEVIN, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR DOA ANA COUNTY , THE DOA ANA COUNTY DETENTION CENTER, CHRISTOPHER BARELA, DAN ZEMEK AND JOHN DOES 2-3, Defendants. DEFENDANTS FIRST AMENDED ANSWER TO PLAINTIFFS ORIGINAL COMPLAINT Defendants filed their answer to plaintiffs original complaint on February 22, 2009. On May 18, 2009, this Court granted the parties stipulated motion allowing plaintiff to amend the caption of plaintiffs case to reflect that John Doe 1 is Dan Zemek. Defendant Dan Zemek has allowed defendants counsel to accept/waive service of process. Defendants first amended answer includes answering on behalf of defendant Dan Zemek: A. Jurisdiction and Venue 1. Defendants admit that plaintiffs allegations attempt to invoke subject matter jurisdiction CIV-08-01185 RHS/DJS

under 28 U.S.C. 1331 and 42 U.S.C. 1983 and 1988. Defendants further admit that plaintiff alleges that all acts of which he complains occurred in Doa Ana County, New Mexico.

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B. Parties 2. Defendants admit that plaintiff is an individual who was at some time detained at the

Doa Ana County Detention Center. Defendants are without knowledge or information sufficient to form a belief as to the truth of plaintiffs averment as to where he has been or is a resident. 3. 4. 5. Defendants admit the averments of paragraph 3. Defendants admit the averments of paragraph 4. Defendants admit that defendant Barela is the Director of the Detention Center.

Defendants admit that Barela, as Director of the Detention Center, acts within the scope of his employment. Defendants deny the remaining averments of paragraph 5. 6. Defendant Dan Zemek worked as the Medical Director in the detention center medical

unit, and as such, defendant Dan Zemek was an employee of Doa Ana County acting within the scope and course of his employment. Defendant denies the remaining allegations of paragraph 6. 7. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 7. 8. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 8. C. Facts 9. Defendants aver that plaintiff was booked into the Doa Ana County Detention Center on

August 24, 2005, for driving while license suspended, open container, traffic violations, and aggravated driving while intoxicated. Defendants deny the remaining averments of paragraph 9. 10. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 10.

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11. 12.

Defendants deny the averments of paragraph 11. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 12. 13. Defendants admit that on or about May 8, 2007, plaintiff was transferred to the Forensic

Division of the Las Vegas Medical Center. Defendants deny the remaining averments of paragraph 13. 14. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 14. 15. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 15. 16. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 16. 17. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 17. 18. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 18. 19. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 19. 20. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 20. 21. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 21.

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22.

Defendants admit that on or about May 22, 2007, plaintiff was returned to the Doa Ana

County Detention Center. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 22. 23. Defendants admit that plaintiff was placed in F pod. Defendants deny the remaining averments of paragraph 23. 24. 25. Plaintiffs deny the averments of paragraph 24. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 25. 26. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 26. 27. Defendants deny that there was a lack of medical care. Defendants are without

knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 27. 28. 29. 30. Defendants admit the averments of paragraph 28. Defendants admit the averments of paragraph 29. Defendants deny the averments of paragraph 30. D. Count I 31. 32. Defendants restate their responses to paragraphs 1 through 30. Defendants deny the averments of paragraph 32.

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33.

Defendants admit that plaintiff did not attend a hearing before he was placed in

administrative segregation. Defendants deny the remaining averments of paragraph 33. 34. Defendants deny the averments of paragraph 34. E. Count II 35. 36. Defendants restate their responses to paragraphs 1 through 34. Defendants admit that plaintiff is entitled to humane treatment and medical care while

deprived of his liberty. Defendants deny the remaining averments of paragraph 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. Defendants deny the averments of paragraph 37. Defendants deny the averments of paragraph 38. Defendants deny the averments of paragraph 39. Defendants deny the averments of paragraph 40. Defendants deny the averments of paragraph 41. Defendants deny the averments of paragraph 42. Defendants deny the averments of paragraph 43. Defendants deny the averments of paragraph 44. Defendants deny the averments of paragraph 45. Defendants deny the averments of paragraph 46.

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F. Count III 47. 48. Defendants restate their responses for paragraphs 1 through 46. Defendants are without knowledge or information sufficient to form a belief as to the

truth of plaintiffs averments of paragraph 48. 49. 50. 51. 52. 53. Defendants deny the averments of paragraph 49. Defendants deny the averments of paragraph 50. Defendants deny the averments of paragraph 51. Defendants deny the averments of paragraph 52. Defendants deny the averments of paragraph 53. G. Count IV 54. 55. 56. 57. 58. Defendants restate their responses to paragraphs 1 through 53. Defendants admit the averments of paragraph 55. Defendants deny the averments of paragraph 56. Defendants deny the averments of paragraph 57. Defendants deny the averments of paragraph 58. H. Count V 59. Defendants restate their responses to paragraphs 1 through 58.

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60. 61. 62. 63.

Defendants deny the averments of paragraph 60. Defendants deny the averments of paragraph 61. Defendants deny the averments of paragraph 62. Defendants deny the averments of paragraph 63. I. Count VI

64. 65. 66. 67.

Defendants restate their responses to paragraphs 1 through 63. Defendants deny the averments of paragraph 65. Defendants deny the averments of paragraph 66. Defendants admit that they have a duty to protect detainees from harm. Defendants deny

the remaining averments of paragraph 67. 68. 69. 70. Defendants deny the averments of paragraph 68. Defendants deny the averments of paragraph 69. Defendants deny the averments of paragraph 70. J. Damages 71. Defendants deny the averments of paragraph 71. K. Jury Demand 72. Defendants demand a trial by jury on all counts.

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L. Affirmative Defenses 73. Defendants assert that defendants are entitled to absolute, qualified, or good faith immunity

for the acts or omissions alleged by plaintiff. 74. Defendants deny that plaintiff has complied with the statutory prerequisites for filing suit

under the New Mexico Tort Claims Act in that plaintiff failed to give timely written notice of such claims. NMSA 41-4-16. 75. Defendants assert that the New Mexico Tort Claims Act is a limited waiver of sovereign

immunity and where immunity has not been specifically waived, defendants are entitled to the defense of sovereign immunity. 76. Defendants assert that plaintiff has alleged causes of action that fail to state a claim for

which relief may be granted. 77. Defendants assert that plaintiff failed to timely file his complaint within the statute of

limitations for actions brought pursuant to Section 1983 of the Title 42 of the United States Code. 78. Defendants assert that plaintiffs claims under the New Mexico Tort Claims Act are

barred, in whole or part, by the statute of limitations for such claims. 79. Defendants assert that plaintiffs claims under each alleged theory of recovery are barred,

in whole or part, by the applicable statute of limitations.

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M. Conclusion and Prayer for Relief 80. Defendants deny the plaintiffs averments in his Conclusion and Prayer for Relief. N. Prayer 81. Defendants ask the Court to find that defendants have committed neither acts nor

omissions on which liability may be found against them, deny plaintiff any and all requested relief, and grant defendants any and all relief to which they are or may be entitled. Respectfully, /s/ John W. Caldwell John W. Caldwell [mailing] P.O. Box 1405 Fairacres, New Mexico 88033-1405 Tel: 915.566.8688 Fax: 888.665.1285 Attorney for Defendants Certificate of Service I certify that a copy of the foregoing document was electronically served through the CM/EMF notice system on August 9, 2009, on the following persons/entities: Matthew Coyte Coyte Law P.C. 1000 Second Street, N.W. Albuquerque, New Mexico 87102 /s/ John W. Caldwell John W. Caldwell