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Case 3:16-cv-02579-B Document 8 Filed 10/24/16

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IN THE UNITED STATE DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AVIS S. ADELMAN
Plaintiff,

§
§
§
v.
§
§
DALLAS AREA RAPID TRANSIT,
§
and STEPHANIE BRANCH, individually §
and in her official capacity as a Dallas
§
Area Rapid Transit Police Officer
§
Defendants.
§

Civil Action No. 3:16-cv-2579

DEFENDANT DALLAS AREA RAPID TRANSIT’S ORIGINAL ANSWER
TO PLAINTIFF’S ORIGINAL COMPLAINT
Pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure, Defendant Dallas Area
Rapid Transit (“DART”) files its Original Answer to Plaintiff’s Original Complaint.
SUMMARY OF THE CASE
1.

DART acknowledges the Plaintiff’s alleged violation of his fundamental constitutional
rights in paragraph 1. DART admits Adelman was arrested and deny the remaining
allegations and demands strict proof thereof.

2.

DART denies the allegations in paragraph 2 and demands strict proof thereof.

3.

DART admits Morgan Lyons is a DART’s media spokesman. DART denies the remaining
allegations in paragraph 3 and demands strict proof thereof.

4.

DART admits the criminal trespass charge against Adelman was dropped and an Internal
Affairs investigation into DART Police Officer Stephanie Branch’s (Branch) actions
involving Adelman was conducted. DART denies the remaining allegations in paragraph
4 and demands strict proof thereof.

5.

DART admits an internal affairs investigation was conducted on the actions taken by
Branch in the matter involving Adelman. Because the disciplinary action taken against

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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Branch is not final, DART denies the remaining allegations in paragraph 5 and demands
strict proof thereof.

6.

DART admits an internal affairs investigation was conducted on the actions taken by
Branch in the matter involving Adelman. Because the disciplinary action taken against
Branch is not final, DART denies the remaining allegations in paragraph 6 and demands
strict proof thereof.

PARTIES
7.

DART acknowledges Plaintiff Adelman is a resident of Dallas, Dallas County, Texas.

8.

DART acknowledges that it is a regional transportation authority created under TEX.
TRANS. CODE §452, providing transportation services to its member cities. DART
admits service of process can be made through Gary Thomas.

9.

DART acknowledges Branch is a Texas resident and a police officer employed by DART.
JURISDICTION AND VENUE

10.

DART does not contest the personal jurisdiction statement in paragraph 10.

11.

DART does not contest the jurisdiction in paragraph 11 and acknowledge the requirements
under 28 U.S.C. § 1331.

12.

DART does not contest venue in paragraph 12 and acknowledge the requirements under
28 U.S.C. § 1391.
FACTS

A. Avi Adelman’s Background
13.

DART lacks knowledge or information sufficient to form a belief about the truth of the
allegations in paragraph 13 and demands strict proof thereof.

14.

DART lacks knowledge or information sufficient to form a belief about the truth of the
allegations in paragraph 14 and demands strict proof thereof.

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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DART lacks knowledge or information sufficient to form a belief about the truth of the
allegations in paragraph 15 and demands strict proof thereof.

B. The Unconstitutional Arrest
16.

DART admits an incident happened on February 9, 2016 between Adelman and DART
police but DART lacks knowledge or information sufficient to form a belief about the truth
of the allegations in paragraph 16 and demands strict proof thereof.

17.

DART admits an incident happened on February 9, 2016 between Adelman and DART
police. DART lacks knowledge or information sufficient to form a belief about the truth
of the allegations in paragraph 17 and demands strict proof thereof.

18.

DART admits an incident happened on February 9, 2016 between Adelman and DART
police. DART lacks knowledge or information sufficient to form a belief about the truth
of the allegations in paragraph 18 and demands strict proof thereof.

19.

DART admits an incident happened on February 9, 2016 between Adelman and DART
police. DART lacks knowledge or information sufficient to form a belief about the truth
of the allegations in paragraph 19 and demands strict proof thereof.

20.

DART admits Adelman was arrested for criminal trespass and taken into custody and
transported to the Lew Sterrett Justice Center. DART lacks knowledge or information
sufficient to form a belief about the truth of the allegations in paragraph 20 and demands
strict proof thereof.

C. The Aftermath and Investigation
21.

DART admits Morgan Lyons is a DART media spokesman. DART denies the remaining
allegations in paragraph 21 and demands strict proof thereof.

22.

DART admits the charges of criminal trespass were dropped against Adelman. DART
denies the remaining allegations in paragraph 22 and demand strict proof thereof.

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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23.

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DART admits an Internal affairs investigation was conducted of the actions taken by
Officer Branch against Adelman. DART acknowledges the quoted sections in paragraph
23 of the Internal Affairs but denies it violated Adelman’s constitutional rights simply
because he was taking photographs and demands strict proof thereof.

24.

DART admits an Internal affairs investigation was conducted of the actions taken by
Officer Branch against Adelman. DART denies the remaining allegations in paragraph 24
and demands strict proof thereof.

D. DART’S Policy Supporting the Unconstitutional Arrest
25.

DART admits an Internal affairs investigation was conducted of the actions taken by
Officer Branch against Adelman. DART admits it has a passenger code of conduct
consistent with Texas Penal Code §30.05. DART denies the remaining allegations in
paragraph 25 and demands strict proof thereof.

26.

DART denies the allegations in paragraph 26 and demands strict proof thereof.

27.

DART disagrees with the statements in paragraph 27, since it is based solely on
assumptions as noted by the use of the word “believes” and is the reason an internal affairs
investigation was conducted of Officer Branch’s actions toward Adelman. DART denies
the allegations in paragraph 27 and demands strict proof thereof.

28.

DART denies the allegations in paragraph 28 and demands strict proof thereof.
CAUSES OF ACTION
Count 1
Violation of Adelman’s First and Fourteenth Amendment Rights, Pursuant to §1983
(Against Defendant Branch)

29.

DART acknowledges all allegations incorporated by reference under paragraph 29.

30.

DART does not understand the context of the statement in paragraph 30 and demands strict
proof thereof.

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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DART admits Adelman was arrested on February 9, 2016 and deny the remaining
allegations in paragraph 31 and demands strict proof thereof.

32.

DART denies the allegations in paragraph 32 and demands strict proof thereof.

33.

DART denies the allegations in paragraph 33 and demands strict proof thereof.

34.

DART denies the allegations in paragraph 34 and demands strict proof thereof.
CAUSES OF ACTION
Count 1I

Violation of Adelman’s Fourth and Fourteeth Amendment Rights, Pursuant to §1983
(Against Defendant Branch)
35. DART acknowledges all allegations incorporated by reference under paragraph 35.
36.

DART denies it has been recognized as an instrumentality of the state, admits it is a
governmental entity created under Texas Transportation Code §452. DART denies the
remaining allegations in paragraph 36 and demands strict proof thereof.

37.

DART admits Adelman was arrested on February 9, 2016 and the charges were later
dropped. DART denies the remaining allegations in paragraph 37 and demands strict proof
thereof.

38.

DART denies the allegations in paragraph 38 and demands strict proof thereof.

39.

DART denies the allegations in paragraph 39 and demands strict proof thereof.

40.

DART denies the allegations in paragraph 40 and demands strict proof thereof.
CAUSES OF ACTION
Count III

Violation of Adelman’s First, Fourth and Fourteeth Amendment Rights, Pursuant to §1983
and Monell v. Dept. of Soc. Servs. Of the City of New York, 436 U.S. 658 (1978)
(Against Defendant DART)
41.
DART acknowledges the allegations incorporated by reference under paragraph 41.
42.

DART admits Adelman was arrested and later the charges were dropped. DART denies
the remaining allegations in paragraph 42 and demands strict proof thereof.

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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43.

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DART admits that Officer Branch was in the course and scope of her employment as a
police officer with DART during the incident and arrest of Adelman.

44.

DART denies the allegations in paragraph 44 and demands strict proof thereof.

45.

DART denies the allegations in paragraph 45 and demands strict proof thereof.

46.

DART denies the allegations in paragraph 46 and demands strict proof thereof.

47.

DART denies the allegations in paragraph 47 and demands strict proof thereof
APPLICATION FOR PERMANENT INJUNCTION

48.

DART acknowledges the allegations incorporated by reference in paragraph 48.

49.

DART lacks knowledge or information sufficient to form a belief about the truth of the
allegations in paragraph 49 and demands strict proof thereof.

50.

DART denies the allegations in paragraph 50 and demands strict proof thereof.

51.

DART denies the allegations in paragraph 51 and demands strict proof thereof.

52.

DART denies the allegations in paragraph 52 and demands strict proof thereof.
ATTORNEY’S FEES AND COSTS

53.

Prior to the filing of this litigation, DART met face to face with Adelman’s counsel. DART
denies it has refused to resolve this matter without litigation. DART acknowledges
reasonable and necessary fees and cost of court may be awarded under federal statutes.
JURY DEMAND

54.

DART acknowledges the jury demand in this paragraph and will rely on this demand.
PRAYER

DART denies the prayer relief requested in a-f of this paragraph and demand strict proof thereof.
AFFIRMATIVE DEFENSES
1.

To the extent applicable, DART affirmatively asserts that it is not liable to the Plaintiff in
the capacity in which it has been sued by virtue of governmental immunity. At the time and
on the occasion of the purported events made the basis of this lawsuit, DART was lawfully
DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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engaged in the performance of a governmental function in that it was operating a regional
public transit system named Dallas Area Rapid Transit.

By legislative and judicial

declaration, the activities of DART constitute a public and essential governmental function.
TEXAS REVISED CIVIL STATUTES, Article 1118y, codified in TEX. TRANS. CODE §452.
Accordingly, DART affirmatively asserts the defense of governmental immunity from suit
and liability under CPRC §101.023(b).
2.

DART affirmatively asserts that all of its operations and actions are pursuant to the TEX.
TRANS. CODE §452, and are governmental functions for all purposes and are not proprietary
functions for any purpose including the application of Chapter 101 of the TEXAS CIVIL
PRACTICE & REMEDIES CODE.

3.

DART affirmatively asserts that it is not liable for the actions of its employees who are
entitled to absolute, individual, official or qualified immunity to the extent applicable under
TEXAS CIVIL PRACTICE & REMEDIES CODE §83.001; §101.026; §101.055 (2) & (3);
§101.056; 101.057(2) and §101.106(a) – (f).

4.

DART affirmatively asserts the charge against the Plaintiff were supported by arguable
probable cause, good faith belief of arguable probable or reasonably mistaken with the
existence of probable cause.

5.

DART affirmatively asserts that Plaintiff has failed to establish the existence of an officially
adopted policy or an established custom of DART or DART police that causes injury and a
causal connection between the policy or custom and the deprivation of a constitutional right.
6.

DART affirmatively asserts that it is not liable for the actions of its employees who are
performing discretionary functions.

7.

DART affirmatively asserts that any actions concerning Plaintiff have at all times been
reasonable, taken in good faith, investigated and corrective steps taken.

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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DART affirmatively asserts that it is not liable for the intentional acts of its employees taken
outside of the course and scope of their employment.

9.

DART affirmatively asserts the defense of governmental, official, or qualified immunity on
behalf of DART and Officer Branch.

10.

To the extent applicable, DART affirmatively asserts any allegations DART acted willfully,
intentionally or maliciously and said conduct constitutes gross negligence such damages are
not authorized against DART pursuant to Civil Practice & Remedies Code, §101.024.

11.

DART reserves the right to assert further affirmative defenses upon discovery of facts not
presently know.
WHEREFORE, Defendant Dallas Area Rapid Transit requests that Plaintiff’s Original

Complaint be dismissed with prejudice and that Plaintiff takes nothing.
Respectfully submitted,
By: /s/ Higinio Gamez
Higinio “Gene” Gamez
Senior Assistant General Counsel
State Bar No.: 90001969
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
(214) 749-3196 Fax (214) 749-0281
ggamez@dart.org
Attorney for Defendant DART
CERTIFICATE OF SERVICE
This is to certify that on October 24, 2016, a copy of this document was served via the
Court’s ECF filing system or by facsimile upon Plaintiff’s Counsel: Tyler J. Bexley, Reese,
Gordon, Marketos, LLP, 750 N. Saint Paul Street, Suite 610, Dallas, Texas 75201-3202. Fax: 214501-0731, tyler.bexley@rgmfirm.com and Jane Bishkin, Law Offices of Jane Bishkin, 10000 N.
Central Expressway, Ste. 400, Dallas, Tx. 75231, jbish@swbell.net.
/s/ Higinio Gamez_______
Higinio “Gene” Gamez
Attorney for Defendant DART

DEFENDANT DART’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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