Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
BOUNKHAM "BOU BOU" PHONESAVANH,
a Minor proceeding by and through his Parents
and Natural Guardians as Next Friends, and
BOUNKHAM PHONESAVANH and
ALECIA PHONESAVANH, Individually and
as Parents of BOUNKHAM "BOU BOU"
PHONESAVANH,
Plaintiffs,
v.
CHARLES LONG in his Individual Capacity
MATTHEW WURTZ, in his Individual
Capacity, JASON STRIBLING, in his
Individual Capacity, NIKKI AUTRY, in her
Individual Capacity, MURRAY KOGOD, in his
Individual Capacity, JONATHAN ROBERTS,
in his Individual Capacity, SHERIFF JOEY
TERRELL, in his Individual Capacity,
PAUL CHESEBORO, in his Individual
Capacity, and JOHN DOE, in his Individual
Capacity,
Defendants.

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CIVIL ACTION FILE
NO.: 2:15-CV-0024-RWS

DEFENDANTS CHARLES LONG, MATTHEW WURTZ, JASON
STRIBLING, MURRAY KOGOD, AND SHERIFF JOEY TERRELL'S
ANSWER AND DEFENSES TO PLAINTIFFS' COMPLAINT FOR
DAMAGES
COME NOW defendants Charles Long, Matthew Wurtz, Jason Stribling,
Murray Kogod, and Sheriff Joey Terrell (collectively referred to herein as "these

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defendants"), by and through the undersigned counsel, and submits this, their
answer and defenses to plaintiffs' complaint for damages (Doc. 1), showing the
Court as follows:
FIRST DEFENSE
Plaintiffs' complaint fails to state a claim against these defendants upon
which relief can be granted.
SECOND DEFENSE
Responding to the numbered paragraphs of plaintiffs' complaint, these
defendants answer as follows:
1.
No response is required by these defendants to the allegations contained in
paragraph 1 of plaintiffs' complaint. To the extent any response is required, these
defendants deny in the form and manner alleged the allegations contained in
paragraph 1 of plaintiffs' complaint and specifically deny that they violated
Georgia law or any of plaintiffs' constitutional rights.
ANSWER TO INTRODUCTION
2.
Responding to the allegations contained in paragraph 2 of plaintiffs'
complaint, these defendants admit that on May 28, 2014, law enforcement officers,
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while acting under color of law, executed a "no knock" search warrant at a
residence located in Habersham County, Georgia. These defendants further admit
that after the exterior door was breached, a noise flash diversionary device was
deployed into the residence and that said device inadvertently landed in a playpen
occupied by plaintiff Bounkham "Bou Bou" Phonesavanh.

These defendants

further admit that plaintiff Bounkham "Bou Bou" Phonesavanh sustained injuries
from the noise flash diversionary device. These defendants deny the remaining
allegations contained in paragraph 2 of plaintiffs' complaint including specifically
denying they did anything unreasonable.
3.
These defendants deny the allegations contained in paragraph 3 of plaintiffs'
complaint including specifically denying their actions were unreasonable or
incompetent.
ANSWER TO JURISDICTION AND VENUE
4.
The allegations contained in paragraph 4 of plaintiffs' complaint constitute a
legal conclusion to which no response is required. To the extent any response is
required, these defendant admit that this Court generally has subject matter
jurisdiction over federal question claims pursuant to 28 U.S.C. §§ 1331 and 1343.
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These defendants further admit that this Court generally has the discretion to
exercise supplemental jurisdiction over state-law claims pursuant to 28 U.S.C.
§ 1367. These defendants deny the remaining allegations contained in paragraph 4
of plaintiffs' complaint.
5.
The allegations contained in paragraph 5 of plaintiffs' complaint constitute a
legal conclusion to which no response is required. To the extent any response is
required, these defendants admit that venue is proper.
ANSWER TO PARTIES
6.
These defendants can neither admit nor deny the allegations contained in the
first sentence of paragraph 6 of plaintiffs' complaint for want of sufficient
information to form a belief as to the truth thereof, and put plaintiffs upon strict
proof of the same. These defendants deny in the form and manner alleged the
remaining allegations contained in paragraph 6 of plaintiffs' complaint.
7.
Responding to the allegations contained in paragraph 7 of plaintiffs'
complaint, these defendants admit only that plaintiff Bounkham "Bou Bou"
Phonesvanh is a minor and that Bounkham and Alecia Phonesavanh purport to
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assert claims in this action on his behalf. These defendants deny the remaining
allegations contained in paragraph 7 of plaintiffs' complaint including specifically
denying search at issue was unreasonable and/or unconstitutional.
8.
No response is required by these defendants to the allegations contained in
paragraph 8 of plaintiffs' complaint. To the extent any response is required, these
defendants deny the allegations contained in paragraph 8 of plaintiffs' complaint
and specifically deny any and all liability for the claims asserted.
9.
No response is required by these defendants to the allegations contained in
paragraph 9 of plaintiffs' complaint. To the extent any response is required, these
defendants admit only that plaintiff Bounkham "Bou Bou" Phonesavanh sustained
injuries from the noise flash diversionary device. These defendants deny the
remaining allegations contained in paragraph 9 of plaintiffs' complaint and
specifically deny any and all liability for the claims asserted.
10.
Responding to the allegations contained in paragraph 10 of plaintiffs'
complaint, these defendants admit that Long is a Sheriff's reserve deputy with the
Habersham County Sheriff's Department and was acting in the course and scope of
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his employment, as a member of the Special Response Team, and under color of
state law at all times material to this action. These defendants further admit that
Long deployed a diversionary device into the subject residence. These defendants
deny the remaining allegations contained in paragraph 10 of plaintiffs' complaint.
11.
These defendants deny the allegations contained in paragraph 11 of
plaintiffs' complaint.
12.
Responding to the allegations contained in paragraph 12 of plaintiffs'
complaint, these defendants admit that Wurtz is a Sergeant with the Habersham
County Sheriff's Department and was acting in the course and scope of his
employment, as a member of the Special Response Team, and under color of state
law at all times material to this action.

These defendants further admit that

Sergeant Wurtz instructed Long regarding his discretionary duties during the preoperational planning regarding deployment of the noise flash diversionary device
into the residence. These defendants deny the remaining allegations contained in
paragraph 12 of plaintiffs' complaint.

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13.
These defendants deny the allegations contained in paragraph 13 of
plaintiffs' complaint.
14.
Responding to the allegations contained in paragraph 14 of plaintiffs'
complaint, these defendants admit that Stribling is a Sheriff's reserve deputy with
the Habersham County Sheriff's Department and was acting in the course and
scope of his employment, as a member of the Special Response Team, and under
color of state law at all times material to this action. These defendants deny the
remaining allegations contained in paragraph 14 of plaintiffs' complaint.
15.
These defendants admit the allegations contained in paragraph 15 of
plaintiffs' complaint.
16.
Responding to the allegations contained in paragraph 16 of plaintiffs'
complaint, these defendants admit upon information and belief that Autry was with
the Habersham County Sheriff's Department, a member of NCIS, and was acting in
the course and scope of her employment and under color of state law at all times
material to this action. These defendants further admit that Autry applied for and
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obtained the search warrant that is the subject of this action. These defendants
deny the remaining allegations contained in paragraph 16 of plaintiffs' complaint.
17.
These defendants can neither admit nor deny the allegations contained in
paragraph 17 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
18.
Responding to the allegations contained in paragraph 18 of plaintiffs'
complaint, these defendants admit only that Kogod was the acting commander of
the NCIS Task Force on the date of the incident. These defendants deny the
remaining allegations contained in paragraph 18 of plaintiffs' complaint.
19.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 19 of plaintiffs' complaint.
20.
These defendants deny upon information and belief the allegations contained
in paragraph 20 of plaintiffs' complaint.

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21.
These defendants can neither admit nor deny the allegations contained in
paragraph 21 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
22.
These defendants admit the allegations contained in paragraph 22 of
plaintiffs' complaint.
23.
These defendants can neither admit nor deny the allegations contained in
paragraph 23 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
24.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 24 of plaintiffs' complaint.
25.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 25 of plaintiffs' complaint.

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ANSWER TO FACTUAL ALLEGATIONS
26.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 26 of plaintiffs' complaint.
27.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 27 of plaintiffs' complaint.
28.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 28 of plaintiffs' complaint.
29.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 29 of plaintiffs' complaint.
30.
These defendants admit only that pursuant to the pre-operation plan a noise
flash diversionary device was deployed during the execution of a "no knock"
search warrant at 182 Lakeview Heights Circle in Habersham County, Georgia on
May 28, 2014 which is located within the Gainesville Division of the Northern

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District of Georgia. These defendants deny the remaining allegations contained in
paragraph 30 of plaintiffs' complaint.
31.
These defendants admit the allegations contained in paragraph 31 of
plaintiffs' complaint.
32.
Responding to the allegations contained in paragraph 32 of plaintiffs'
complaint, these defendants state that the affidavit and application for a search
warrant speak for itself.

These defendants deny the remaining allegations

contained in paragraph 32 of plaintiffs' complaint.
33.
These defendants deny upon information and belief the allegations contained
in paragraph 33 of plaintiffs' complaint.
34.
Responding to the allegations contained in paragraph 34 of plaintiffs'
complaint, these defendants state that the affidavit and application for a search
warrant speak for itself.

These defendants deny the remaining allegations

contained in paragraph 34 of plaintiffs' complaint.

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35.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 35 of plaintiffs' complaint.
36.
These defendants can neither admit nor deny the allegations contained in
paragraph 36 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
37.
These defendants deny the allegations contained in paragraph 37 of
plaintiffs' complaint.
38.
Responding to the allegations contained in paragraph 38 of plaintiffs'
complaint, these defendants admit that there were approximately five adults and
four children in the subject residence at the time the noise flash diversionary devise
was deployed. These defendants can neither admit nor deny whether the adults
and children were asleep at the time of the deployment for want of sufficient
information to form a belief as to the truth thereof, and put plaintiffs upon strict
proof of the same.

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39.
These defendants can neither admit nor deny the allegations contained in
paragraph 39 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
40.
Responding to the allegations contained in paragraph 40 of plaintiffs'
complaint, these defendants admit only that defendant Charles Long deployed a
diversionary device into the subject residence pursuant to the pre-operational plan.
These defendants deny the remaining allegations contained in paragraph 40 of
plaintiffs' complaint.
41.
Responding to the allegations contained in paragraph 41 of plaintiffs'
complaint, these defendants admit only that plaintiff Bounkham "Bou Bou"
Phonesavanh sustained injuries from the noise flash diversionary device. These
defendants deny the remaining allegations contained in paragraph 41 of plaintiffs'
complaint.
42.
Responding to the allegations contained in paragraph 42 of plaintiffs'
complaint, these defendants admit only that plaintiff Bounkham "Bou Bou"
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Phonesavanh sustained injuries from the noise flash diversionary device. These
defendants can neither admit nor deny the remaining allegations contained in
paragraph 42 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
43.
These defendants admit that attached to plaintiffs' complaint as Exhibit B is
a photograph of plaintiff Bounkham "Bou Bou" Phonesavanh, but specifically
deny that Exhibit B accurately depicts the injuries allegedly sustained by
Bounkham "Bou Bou" Phonesavanh.
44.
These defendants can neither admit nor deny the allegations contained in
paragraph 44 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
45.
These defendants deny that portion of the facts as alleged in paragraph 45 of
plaintiffs' complaint that evidence of the presence of children at the residence was
obvious to anyone who went in or near the residence where the warrant was the be
executed. These defendants can neither admit nor deny the remaining allegations
contained in paragraph 45 of plaintiffs' complaint for want of sufficient
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information to form a belief as to the truth thereof, and put plaintiffs upon strict
proof of the same.
46.
These defendants deny the allegations contained in paragraph 46 of
plaintiffs' complaint.
47.
These defendants can neither admit nor deny the allegations contained in
paragraph 47 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
48.
These defendants deny the allegations contained in paragraph 48 of
plaintiffs' complaint.
49.
These defendants deny the allegations contained in paragraph 49 of
plaintiffs' complaint.
50.
These defendants deny the allegations contained in paragraph 50 of
plaintiffs' complaint.

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51.
These defendants deny the allegations contained in paragraph 51 of
plaintiffs' complaint including denying that the noise flash diversionary device was
deployed in violation of any training guideline.
52.
These defendants deny the allegations contained in paragraph 52 of
plaintiffs' complaint.
53.
These defendants deny the allegations contained in paragraph 53 of
plaintiffs' complaint including denying that the force used in this matter was used
incompetently, willfully, and unreasonably.
54.
These defendants admit that portion of the allegations contained in
paragraph 54 of plaintiffs' complaint that defendant Long deployed the noise flash
diversionary device as part of his discretionary duties after defendant Wurtz
presented defendant Long with his discretionary duties in the pre-operational plan.
These defendants deny the allegations contained in paragraph 54 of plaintiffs'
complaint.

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55.
These defendants deny the allegations contained in paragraph 55 of
plaintiffs' complaint.
56.
Responding to the allegations contained in paragraph 56 of plaintiffs'
complaint, these defendants admit only that the potential use of the noise flash
diversionary device was pre-planned by Sergeant Wurtz due to the violent history
of Wanis Thonetheva, the possibility of weapons on scene due to information
known by the officers involved in the execution of the search warrant, and in
accordance with reasonable precautions and proper police procedure.

These

defendants deny the remaining allegations contained in paragraph 56 of plaintiffs'
complaint including the allegation that the Fourth Amendment was violated.
57.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 57 of plaintiffs' complaint.
58.
These defendants deny the allegations contained in paragraph 58 of
plaintiffs' complaint.

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59.
Responding to the allegations contained in paragraph 59 of plaintiffs'
complaint, these defendants state that the officers properly utilized the discretion
afforded to them by law in the manner in which the no-knock search warrant was
executed. These defendants deny the remaining allegations contained in paragraph
59 of plaintiffs' complaint.
60.
These defendants deny the allegations contained in paragraph 60 of
plaintiffs' complaint including any allegation that the Fourth Amendment was
violated.
61.
The allegations contained in paragraph 61 of plaintiffs' complaint constitute
a legal conclusion to which no response is required. To the extent any response is
required, these defendants deny in the form and manner alleged the allegations
contained in paragraph 61 of plaintiffs' complaint.
62.
These defendants deny the allegations contained in paragraph 62 of
plaintiffs' complaint.

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63.
Responding to the allegations contained in paragraph 63 of plaintiffs'
complaint, these defendants state that Exhibit C attached to plaintiffs' complaint
speaks for itself. These defendants can neither admit nor deny whether plaintiffs
have provided ante litem notice of their claims to all of the constituent members of
the Mountain Judicial Circuit NCIS for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
64.
These defendants deny the allegations contained in paragraph 64 of
plaintiffs' complaint and specifically deny that they violated Georgia law or any of
plaintiffs' constitutional rights.
ANSWER TO COUNT ONE
(AGAINST DEFENDANTS LONG, STRIBLING, WURTZ, ROBERTS,
AUTRY, CHESEBORO AND DOE)
65.
Responding to the allegations contained in paragraph 65 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 64 above.

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66.
These defendants deny the allegations contained in paragraph 66 of
plaintiffs' complaint and specifically deny any and all liability for the claims
asserted.
ANSWER TO COUNT TWO AGAINST DEFENDANTS AUTRY AND
KOGOD UNDER 42 U.S.C. § 1983
67.
Responding to the allegations contained in paragraph 67 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 66 above.
68.
Responding to the allegations contained in paragraph 68 of plaintiffs'
complaint, these defendants state that Exhibit A attached to plaintiffs' complaint
speaks for itself. These defendants deny the remaining allegations contained in
paragraph 68 of plaintiffs' complaint.
69.
These defendants admit the allegations contained in paragraph 69 of
plaintiffs' complaint.

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70.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 70 of plaintiffs' complaint.
71.
These defendants deny upon information and belief the allegations contained
in paragraph 71 of plaintiffs' complaint.
72.
These defendants deny the allegations contained in paragraph 72 of
plaintiffs' complaint.
73.
Responding to the allegations contained in paragraph 73 of plaintiffs'
complaint, these defendants state that Exhibit A attached to plaintiffs' complaint
speaks for itself.

These defendants deny upon information and belief the

remaining allegations contained in paragraph 73 of plaintiffs' complaint.
74.
Responding to the allegations contained in paragraph 74 of plaintiffs'
complaint, these defendants state that the affidavit speaks for itself.

These

defendants can neither admit nor deny whether plaintiffs "were visiting guests of
the owner of the premises driving a van with a clearly visible out of state license
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plate" for want of sufficient information to form a belief as to the truth thereof, and
put plaintiffs upon strict proof of the same. These defendants deny the remaining
allegations contained in paragraph 74 of plaintiffs' complaint.
75.
These defendants deny upon information and belief the allegations contained
in paragraph 75 of plaintiffs' complaint.
76.
Responding to the allegations contained in paragraph 76 of plaintiffs'
complaint, these defendants deny upon information and belief that false and
misleading information was used in the search warrant application.

These

defendants can neither admit nor deny the remaining allegations contained in
paragraph 76 of plaintiffs' complaint for want of sufficient information to form a
belief as to the truth thereof, and put plaintiffs upon strict proof of the same.
77.
These defendants deny upon information and belief the allegations contained
in paragraph 77 of plaintiffs' complaint.
78.
Responding to the allegations contained in paragraph 78 of plaintiffs'
complaint, these defendants admit the first sentence of paragraph 78 of plaintiffs'
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complaint. These defendants further admit that Thonetheva was later arrested
without the use of a noise flash diversionary device. These defendants deny the
remaining allegations contained in paragraph 78 of plaintiffs' complaint.
79.
Responding to the allegations contained in paragraph 79 of plaintiffs'
complaint, these defendants admit that Kogod was Autry's supervisor at all times
pertinent to this action. These defendants deny the remaining allegations contained
in paragraph 79 of plaintiffs' complaint.
80.
These defendants deny the allegations contained in paragraph 80 of
plaintiffs' complaint.
81.
These defendants deny the allegations contained in paragraph 81 of
plaintiffs' complaint.
82.
These defendants deny that any false or misleading information was
contained in the search warrant and defendant Kogod was demoted and removed
from his position as Commander of the Task Force. These defendants can neither
admit nor deny the remaining allegations contained in paragraph 82 of plaintiffs'
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complaint for want of sufficient information to form a belief as to the truth thereof,
and put plaintiffs upon strict proof of the same.
83.
Responding to the allegations contained in paragraph 83 of plaintiffs'
complaint, these defendants state that Exhibit D of plaintiffs' complaint speaks for
itself. These defendants can neither admit nor deny the remaining allegations
contained in paragraph 83 of plaintiffs' complaint for want of sufficient
information to form a belief as to the truth thereof, and put plaintiffs upon strict
proof of the same.
84.
These defendants deny the allegations contained in paragraph 84 of
plaintiffs' complaint including specifically denying the search warrant at issue was
improperly obtained and/or the search itself was illegal.
ANSWER TO COUNT THREE ASSAULT AND BATTERY
(AGAINST ALL DEFENDANTS EXCEPT TERRELL)
85.
Responding to the allegations contained in paragraph 85 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
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86.
These defendants deny the allegations contained in paragraph 86 of
plaintiffs' complaint and specifically deny that Exhibit B attached to plaintiffs'
complaint accurately depicts the injuries allegedly sustained by Bounkham "Bou
Bou" Phonesavanh; and that defendant Long blindly and incompetently deployed
the noise flash diversionary device.
ANSWER TO COUNT FOUR ASSAULT AND BATTERY INVOLVING
DAMAGES TO BOUNKHAM AND ALECIA PHONESAVANH (AGAINST
ALL DEFENDANTS EXCEPT SHERIFF TERRELL)
87.
Responding to the allegations contained in paragraph 87 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
88.
These defendants deny the allegations contained in paragraph 88 of
plaintiffs' complaint.

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ANSWER TO COUNT FIVE NEGLIGENT BREACH OF MINISTERIAL
DUTY (AGAINST ALL DEFENDANTS)
89.
Responding to the allegations contained in paragraph 89 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
90.
These defendants deny the allegations contained in paragraph 90 of
plaintiffs' complaint.
91.
These defendants deny the allegations contained in paragraph 91 of
plaintiffs' complaint.
92.
These defendants deny the allegations contained in paragraph 92 of
plaintiffs' complaint.
93.
These defendants deny the allegations contained in paragraph 93 of
plaintiffs' complaint.

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94.
Responding to the allegations contained in paragraph 94 of plaintiffs'
complaint, these defendants admit that they are trained generally not to deploy a
diversionary device "blindly" into a room. These defendants deny the remaining
allegations contained in paragraph 94 of plaintiffs' complaint and specifically deny
that any proper police practices were violated.
95.
These defendants deny the allegations contained in paragraph 95 of
plaintiffs' complaint.

ANSWER TO COUNT SIX INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS (AGAINST ALL DEFENDANTS EXCEPT
TERRELL)
96.
Responding to the allegations contained in paragraph 96 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 95 above.

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97.
These defendants deny the allegations contained in paragraph 97 of
plaintiffs' complaint and specifically deny that they violated Georgia law or any of
plaintiffs' constitutional rights.
ANSWER TO COUNT SEVEN (BREACH OF CONTRACT AGAINST ALL
DEFENDANTS)
98.
Responding to the allegations contained in paragraph 98 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
99.
These defendants admit that portion of the facts contained in paragraph 99 of
plaintiffs' complaint that upon entering the residence, one or more members of the
search team recognized the need for immediate medical care of one of the people
present and immediate treatment was begun. These defendants deny in the form
and manner alleged the remaining allegations contained in paragraph 99 of
plaintiffs' complaint.

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100.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 100 of plaintiffs' complaint.
101.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 101 of plaintiffs' complaint.
102.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 102 of plaintiffs' complaint.
103.
These defendants deny in the form and manner alleged the allegations
contained in paragraph 103 of plaintiffs' complaint.
104.
These defendants deny the allegations contained in paragraph 104 of
plaintiffs' complaint.
105.
These defendants deny the allegations contained in paragraph 105 of
plaintiffs' complaint and specifically deny any liability for the payment of medical
expenses.
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106.
No response is required by these defendants to the allegations contained in
paragraph 106 of plaintiffs' complaint. To the extent any response is required,
these defendants deny in the form and manner alleged the allegations contained in
paragraph 106 of plaintiffs' complaint and specifically deny that they violated any
of plaintiffs' constitutional rights or rights under Georgia law or that the officers
acted incompetently in any manner.
107.
The allegations contained in paragraph 107 of plaintiffs' complaint constitute
a legal conclusion to which no response is required. To the extent any response is
required, these defendants deny the allegations contained in paragraph 107 of
plaintiffs' complaint.
108.
The allegations contained in paragraph 108 of plaintiffs' complaint constitute
a legal conclusion to which no response is required. To the extent any response is
required, these defendants deny the allegations contained in paragraph 108 of
plaintiffs' complaint.

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109.
These defendants deny the allegations contained in paragraph 109 of
plaintiffs' complaint including that the officers acted incompetently or that
plaintiffs' due process rights were violated.
110.
These defendants deny the allegations contained in paragraph 110 of
plaintiffs' complaint including that the officers acted incompetently.
ANSWER TO COUNT EIGHT ATTORNEY FEES (ALL DEFENDANTS)
111.
Responding to the allegations contained in paragraph 111 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
112.
No response is required by these defendants to the allegations contained in
paragraph 112 of plaintiffs' complaint. To the extent any response is required,
these defendants deny in the form and manner alleged the allegations contained in
paragraph 112 of plaintiffs' complaint and specifically deny that plaintiffs are
entitled to an award of attorney's fees against these defendants.
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113.
No response is required by these defendants to the allegations contained in
paragraph 113 of plaintiffs' complaint. To the extent any response is required,
these defendant deny in the form and manner alleged the allegations contained in
paragraph 113 of plaintiffs' complaint and specifically deny that plaintiffs are
entitled to an award of attorney's fees against these defendants.
ANSWER TO COUNT NINE PUNITIVE DAMAGES (ALL DEFENDANTS)
114.
Responding to the allegations contained in paragraph 114 of plaintiffs'
complaint, these defendants hereby incorporate by reference as if fully set forth
verbatim herein their answers and responses previously made to paragraphs 1
through 84 above.
115.
These defendants deny the allegations contained in paragraph 115 of
plaintiffs' complaint.
116.
Responding to the allegations contained in the unnumbered paragraph of
plaintiffs' complaint beginning WHEREFORE, and constituting plaintiffs' prayer
for relief, these defendants deny all such allegations, including subparagraphs a.
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Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 33 of 39

through i. thereof, and specifically deny that plaintiffs are entitled to any of the
relief requested from them in form, type, or amount, under any theory at law or in
equity.
117.
Except as expressly admitted, denied, or otherwise responded to, these
defendants deny all allegations contained in plaintiffs' complaint.
THIRD DEFENSE
These defendants show that under all of the facts and circumstances, their
conduct was discretionary in nature, was not in violation of any clearly established
constitutional right of which a reasonable officer would have had fair notice, and
was likewise objectively reasonable, thereby entitling these defendants to qualified
immunity.
FOURTH DEFENSE
These defendants did not breach any duty they may have owed to plaintiffs
based upon the allegations contained in plaintiffs' complaint.
FIFTH DEFENSE
Plaintiffs' damages, if any, resulted solely from the voluntary and intentional
conduct of plaintiffs or others and not from any conduct of these defendants or
those over whom these defendants had any control.
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Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 34 of 39

SIXTH DEFENSE
Plaintiffs' damages, if any, were caused by the independent acts and
decisions of persons and entities other than these defendants or those over whom
these defendants had some legal right of control.
SEVENTH DEFENSE
To the extent as may be shown by the evidence through discovery, these
defendants show that plaintiffs' damages, if any, were directly and proximately
caused by the contributory and comparative negligence of plaintiffs and their
failure to exercise ordinary care.
EIGHTH DEFENSE
These defendants show that all of their alleged actions or inactions with
respect to plaintiffs were carried out in the good faith performance of their official,
discretionary duties and without actual malice or actual intent to cause injury to
plaintiffs. Accordingly, these defendants are entitled to official immunity under
Georgia law.
NINTH DEFENSE
No act or omission of these defendants either proximately caused or
contributed to any damages allegedly suffered by plaintiffs; therefore, plaintiffs
have no right of recovery against these defendants.
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Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 35 of 39

TENTH DEFENSE
To the extent as may be shown by the evidence through discovery, plaintiffs'
injuries and damages, if any, were caused by the deliberate, criminal conduct of
plaintiffs, and such criminal conduct supersedes any and all negligence or liability,
if any, on the part of these defendants.
ELEVENTH DEFENSE
To the extent as may be shown by the evidence through discovery, these
defendants also assert the affirmatives defenses of assumption of the risk, failure to
avoid consequences, laches, failure to mitigate damages, last clear chance and
sudden emergency.
TWELFTH DEFENSE
These defendants show that plaintiffs were not deprived of any
constitutionally protected life, liberty, or property interest without due process of
law, nor did these defendants violate the rights of plaintiffs under any provisions of
or amendments to the United States Constitution, any other United States laws, any
provisions of or amendments to the Georgia Constitution, or any other Georgia
laws.

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Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 36 of 39

THIRTEENTH DEFENSE
These defendants reserve the right to plead and prove such other defenses as
may become known to them during the course of their investigation and discovery.
WHEREFORE, having fully listed their defenses and having fully answered
the complaint, these defendants pray as follows:
(a)

That judgment be entered in favor of these defendants and against
plaintiffs on the complaint;

(b)

That the costs of this action, including attorney's fees, be cast against
plaintiffs; and

(c)

That the Court grant such other and further relief as it may deem just
and proper.
THESE DEFENDANTS DEMAND TRIAL BY JURY
ON ALL ISSUES SO TRIABLE.

This 30th day of March, 2015.
FREEMAN MATHIS & GARY, LLP
/s/ Wayne S. Melnick
Theodore Freeman
Georgia Bar No. 276350
tfreeman@fmglaw.com
Wayne S. Melnick
Georgia Bar No. 501267
wmelnick@fmglaw.com

- 36 -

Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 37 of 39

A. Ali Sabzevari
Georgia Bar No. 941527
asabzevari@fmglaw.com

Attorneys for Defendants Charles Long,
Matthew Wurtz, Jason Stribling, Murray
Kogod, and Sheriff Joey Terrell
100 Galleria Parkway
Suite 1600
Atlanta, Georgia 30339-5948
(770) 818-0000 (telephone)
(770) 937-9960 (facsimile)

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Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 38 of 39

CERTIFICATE OF SERVICE
I hereby certify that I have this day electronically submitted the foregoing
DEFENDANTS

CHARLES

LONG,

MATTHEW

WURTZ,

JASON

STRIBLING, MURRAY KOGOD, AND SHERIFF JOEY TERRELL'S
ANSWER AND DEFENSES TO PLAINTIFFS' COMPLAINT FOR
DAMAGES to the Clerk of Court using the CM/ECF system which will
automatically send electronic mail notification of such filing to counsel of record
who are CM/ECF participants:
Richard W. Hendrix
Steven R. Wisebram
Finch McCranie, LLP
225 Peachtree Street, NE
1700 South Tower
Atlanta, GA 30303
Mawuli Mel Davis
Candice D. McKinley
The Davis Bozeman Law Firm, P.C.
4153-B Flat Shoals Parkway, Suite 204
Decatur, GA 30034
John A. Dickerson
Austin L. Perry
McClure, Ramsay, Dickerson & Escoe, LLP
P.O. Drawer 1408
Toccoa, GA 30577

Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 39 of 39

M. Steven Campbell
Campbell & Campbell
P.O. Box 489
Cornelia, GA 30531
This 30th day of March, 2015.
FREEMAN MATHIS & GARY, LLP
/s/ Wayne S. Melnick
Wayne S. Melnick
Georgia Bar No. 501267
wmelnick@fmglaw.com
Attorneys for Defendants Charles Long,
Matthew Wurtz, Jason Stribling, Murray
Kogod, and Sheriff Joey Terrell
100 Galleria Parkway
Suite 1600
Atlanta, Georgia 30339-5948
(770) 818-0000 (telephone)
(770) 937-9960 (facsimile)
1252407

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