UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NICHOLAS KINCADE, )
)
Plaintiff, )
)
v. ) NO: 2:14-CV-234-PPS-J EM
)
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 defendants 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 plaintiffs rights.
JURISDICTION AND VENUE
2. This Court has original jurisdiction pursuant to 28 U.S.C. 1331 over Plaintiffs 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.
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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.
Response: Admitted.
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.
Response: Admitted.
6. The City of Lafayette is a municipality located in Tippecanoe County, Indiana. LPD is a duly
authorized department within the City of Lafayette.
Response: Admitted.
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.
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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.
Response: Admitted.
12. Then Lt. Davidson approached Nicholas while was outside on a public sidewalk and
searched his backpack without a warrant.
Response: Denied.
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.
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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. Davidsons
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 youre going to jail or words
to that effect.
Response: Defendant admits that one of the officers on the scene said now youre
going to jail but denies the remaining allegations of paragraph 15.
16. Prior to the battery and Lt. Davidsons use of force, Nicholas was complying with police and
doing what they had asked him to do.
Response: Denied.
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 officers
patrol car.
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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.
Response: Admitted.
20. Nicholas suffered physical injuries as a result the incident.
Response: Denied.
21. Nicholass motorized wheelchair was broken as a result of the incident.
Response: Denied.
22. Nicholas suffered significant humiliation and embarrassment as a result of Lt. Davidsons
actions and/or the actions of other officers on the scene.
Response: Denied.
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.
Response: Admitted.
LEGAL CLAIMS
COUNT I
Fourth Amendment ViolationLt. Davidson
24. Plaintiff incorporates by reference the allegations of the foregoing paragraphs as though set
forth at length herein.
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Response: This count does not assert a claim against defendant City of Lafayette.
25. Lt. Davidson is a person within the meaning of 42 U.S.C. 1983.
Response: This count does not assert a claim against defendant City of Lafayette.
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.
Response: This count does not assert a claim against defendant City of Lafayette.
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.
Response: This count does not assert a claim against defendant City of Lafayette.
28. Lt. Davidson actions or omissions constituted a violation and a deprivation of Plaintiffs
rights under the Fourth and Fourteenth Amendments to the United States Constitution.
Response: This count does not assert a claim against defendant City of Lafayette.
29. Lt. Davidsons actions, omission, or failures caused Plaintiff to suffer harm.
Response: This count does not assert a claim against defendant City of Lafayette.
30. Plaintiff pursues this claim for unlawful arrest and excessive force in violation of the Fourth
Amendment.
Response: This count does not assert a claim against defendant City of Lafayette.
31. Lt. Davidsons violated Nicholass right to be free from interference from the zone of privacy
as recognized by the Fourth and Ninth Amendments.
Response: This count does not assert a claim against defendant City of Lafayette.
32. Lt. Davidsons actions violated Nicholass right to equal protection of the laws as
guaranteed by the Fourteenth Amendment.
Response: This count does not assert a claim against defendant City of Lafayette.
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33. Lt. Davidsons actions or omission were made knowingly, intentionally, and/or with reckless
disregard for Plaintiffs rights.
Response: This count does not assert a claim against defendant City of Lafayette.
34. Lt. Davidsons conduct is actionable under 42 U.S.C. 1983.
Response: This count does not assert a claim against defendant City of Lafayette.
COUNT II
First Amendment ViolationLt. Davidson
35. Plaintiff incorporates by reference the allegations of the foregoing paragraphs as though set
forth at length herein.
Response: This count does not assert a claim against defendant City of Lafayette.
36. Officer Davidson is a person within the meaning of 42 U.S.C. 1983.
Response: This count does not assert a claim against defendant City of Lafayette.
37. Officer Davidsons actions and/or omissions were taken under color of state law based on
his authority and official position as an officer with LPD.
Response: This count does not assert a claim against defendant City of Lafayette.
38. The First Amendment to the United States Constitution provides for freedom of speech and
expression as well as other protected rights.
Response: This count does not assert a claim against defendant City of Lafayette.
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).
Response: This count does not assert a claim against defendant City of Lafayette.
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40. The Plaintiff was exercising rights protected under the First and Fourteenth Amendments
when he spoke with Lt. Davidson.
Response: This count does not assert a claim against defendant City of Lafayette.
41. Lt. Davidson unlawfully retaliated and penalized Plaintiff for exercising his rights under the
First Amendment to the United States Constitution.
Response: This count does not assert a claim against defendant City of Lafayette.
42. Lt. Davidsons deprivations of Plaintiffs First Amendment rights caused Plaintiff to suffer
harm.
Response: This count does not assert a claim against defendant City of Lafayette.
43. Lt. Davidsons actions or omissions were made knowingly, intentionally, and/or with reckless
disregard for Plaintiffs rights.
Response: This count does not assert a claim against defendant City of Lafayette.
44. Lt. Davidsons conduct is actionable under 42 U.S.C. 1983.
Response: This count does not assert a claim against defendant City of Lafayette.
COUNT III
Americans with Disabilities Act Violation 42 U.S.C. 12132All 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.
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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).
Response: Admitted.
49. Nicholas was excluded from or denied the benefits of LPDs services or otherwise
discriminated against by the public entity because of his disability.
Response: Denied.
50. Nicholass was subjected to a wrongful arrest based on his disability, not for any criminal
activity.
Response: Denied.
51. LPD failed to reasonably accommodate Nicholass disability during the investigation or his
arrest, which caused him to suffer greater injury or indignity than other arrestees.
Response: Denied.
52. Lt. Davidson intentionally acted on the basis of Nicholass disability.
Response: Denied.
53. Lt. Davidson refused to provide a reasonable modification or accommodation of Nicholass
disability. He was deliberately indifferent to Nicholass recognized disability.
Response: Denied.
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54. Lt. Davidson arrested Nicholas because of legal conduct related to his disability.
Response: Denied.
55. Nicholas was harmed as a result of Lt. Davidson, the City, and the Departments unlawful
actions.
Response: Denied.
PRAYER FOR RELIEF
56. Plaintiff respectfully requests:
a. compensatory and punitive damages;
b. reasonable attorneys 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 plaintiffs disability under the facts and circumstances of this
case would have imposed an undue burden on the City of Lafayette.
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4. Plaintiff incurred or assumed the risk of his own negligent or otherwise tortious
conduct.
5. Lt. Davidsons actions were legally justified by the need to use reasonable
physical force.
6. Lt. Davidsons 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
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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 Courts 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
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