IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE
DEMARIO N. HARRIS, SR.,
Plaintiff,
v.
ROBERT ARNOLD, in his official
capacity 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.

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No. 3:14-2304
Judge Todd J. Campbell
Magistrate Judge Brown

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.

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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.
29.

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

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.

39.

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

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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that they cannot be held liable to Plaintiff pursuant to 42 U.S.C.
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
Defendants aver that such claim for punitive damages cannot be sustained
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
provisions of the Tennessee Constitution.
THIRTY-FIFTH DEFENSE
Defendants aver that such claim for punitive damages cannot be sustained
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
Defendants aver that such claim for punitive damages cannot be sustained
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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
provisions of the Tennessee Constitution.
THIRTY-SEVENTH DEFENSE
Defendants aver that such claim for punitive damages cannot be sustained
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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 fortynine 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, #21436
Blake A. Garner, #31129
16 Public Square North
P.O. Box 884
Murfreesboro, TN 37133
(615) 893-5522
ecope@mborolaw.com
bgarner@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 300
Nashville, TN 37201
Aubrey T. Givens, Esq.
501 Union Street, Suite 307
Nashville, TN 37219
on this 28th day of January, 2015.
/s/ E. Evan Cope_______
E. Evan Cope

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