IN THE UNITED STATES DISTRICT COURT FOR TH AST RN DISTRICT OF NESSEE AT KNOXVILLE JEREMY BURGESS AND KELLY BURGESS individually and as next friends of -- 3 mim>|' Child>> Plaintiffs. vs. No. KNOX COUNTY SCHOOLS. RICHARD WARD, in his individual SUSAN E. PETERSON, in her individual capacity. Defendants. ANSWER OF DEFENDANT KNOX COUNTY SCHOOLS Defendant Knox County Schools answers l=luirrtn'rs complaint as follows: Prelinlinnrily. Knox County Schools asserts that it is an LEA (Local Education Association) Created by state law and is agent of the of Tennessee, which hits not been sued hereitt and Knox County Schools an an agent of tlle State of Tennensee, a known principal is I'l0[ subject to lawsuit it is therefore denied that Knox County Schools is it proper Defendant. l. The allegations of paragraph 1 ofthc are admitted. 2. The allegations 2 ofthe Complaint are denied. 3. It is admitted that Richard Wald was the program facilitator' at Cedar Bluff Pre-School Center. It is denied he was acting under "color" of state law. It is admitted he WLIS acting under state lzlw. It is denied his actions constitute the oflicizll policy and procedures of Knox County senoon. Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 1 of 7 PagelD 45 4. The allegations of paragraph 4 ofthe Complaint are denied. 5. It is acknowledged that, as to certain claims, the Circuit Court of Knox County, Tennessee had exclusivejurisdiction; but, it is assened that to the federal claims the United States strict Court for the Eastern District of Tennessee, at Knoxville. has jurisdiction. It is admitted that so long as there is federal question jurisdiction, the District Court may exercise jurisdiction over the supplemental state law claims. otherwise the federal district eoun does not have anyjurisdiction over the GTLA claims of Plaintiff. 6. It is admitted that venue is proper in the United States riot Court for the Eastern District of Tennessee. at Knoxville. the case having been removed from state coun to the federal district court. 7. It is admitted that-was a -igned to a special education classroom at Cedar Bluff Pre-School Center where Ms. Peterson taught. 8. The allegations in the first sentence of paragraph 8 are admitted. with respect to the second sentence in paragraph 3, nereinhnit has no knowledge as to when 2 began having grand mal seizures and therefore enn lleither admit nor deny the allegntion and to the extent that it is relevant, strict proof is demanded thereof. 9. The allegations in the first sentence of paragraph 9 are admitted, and it is admitted that CB wit. by an IEP and that additiunttl personnel were 2 the needs of the students. The remaining allegations of paragraph 9 are denied as stated. I0. The Defendant does not have inf0l'mati0ll as to what Plaintiffs observed in the presence of Ms. Peterson. The Defendant further does not information to admit or deny the allegations as to that which the Plaintiffs relied and demand strict pl'00fthet'eof. 2 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 2 of 7 PagelD 46 11. It is admitted that on one occasion, CB was taken by ambulance from school to the hospital in connection with a grand mal seizure. With respect to the onset of grand mal seizures at school, the records will reflect when CB began having grand mal seizures at school, and at this time, the Defendant is without sufficient information to form a belief as to the onset of the grand mal seizures at school. With respect to the remaining allegations in paragraph 11, the defendant is without sufficient information to form a belief as to the truth of the matters asserted and the same are therefore denied. 12. Upon hearsay information only, it is admitted that on May 3, 2012, CB was buckled in a special needs chair in Ms. Peterson's classroom and that a teaching assistant brought Ms. Peterson a cup of coffee for her birthday and that CB's chair was accidently tipped over as Ms. Peterson was responding to an emergency situation, and that CB was not hurt. The remaining allegations of paragraph 12 are denied. 13. The allegations of paragraph 13 of the Complaint are denied because they are untrue and the averment states a legal conclusion and Defendant moves to strike same. 14. The allegations of paragraph 14 of the Complaint are denied. 15. The allegations of par. 15 of the Complaint are denied. 16. The allegations of paragraph 16 of the Complaint are denied. 17. The averments of par. 17 of the Complaint are conclusory and Defendant moves to strike it. All other allegations are denied. 18. It is admitted that CB came to school on May 4, 2012. CB had no injuries. Plaintiffs' characterization of Ms. Peterson's actions of May 3, 2012 is denied. The remaining allegations of paragraph 18 are denied. For further answer, it is asserted that after a full 3 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 3 of 7 PageID #: 47 investigation, DCS concluded that all allegations against Ms. Peterson and the school were unfounded. 19. The averments and conclusions of paragraph 19 of the Complaint are denied. 20. For answer to paragraph 20, it is denied there was a second assault, and thus is it denied that a second assault was observed. Mr. Ward did receive a statement from a teaching assistant about an accident in the restroom. All other allegations of paragraph 20 of the Complaint are denied. 21. The averments of paragraph 21 are denied. Said averments are conclusory and defendant moves to strike same. 22. The averments of paragraph 22 of the Complaint are denied. Said averments are conclusory and defendant moves to strike same. 23. The averments of paragraph 23 of the Complaint are denied. Said averments are conclusory and defendant moves to strike same. 24. The averments of paragraph 24 of the Complaint are denied. 25. It is admitted that Mr. Ward told Plaintiffs that DCS was investigating the "chair tip" accident. All other allegations are presumptive and conclusory and are denied. 26. All allegations of paragraph 26 of the Complaint are denied. 27. The allegations of paragraph 27 of the Complaint are denied. 28. The averments of paragraph 28 through 43 of the Complaint do not apply to this defendant and no answer is therefore required. 29. For answer to paragraph 44 of the Complaint, Defendant adopts, by reference, its answers to paragraph 7 through 43. 30. The allegations of paragraph 45 of the Complaint are denied. 4 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 4 of 7 PageID #: 48 31. The allegations of paragraph 46 of the Complaint are denied. 32. The allegations of paragraph 47 of the Complaint are denied. 33. The allegations of paragraph 48 of the Complaint are denied. 34. The averments of paragraph 49 of the Complaint are presumptive, based upon an improper predicate, conclusory and should be stricken. Defendant therefore denies same. 35. The averments of paragraph 50 of the Complaint are presumptive, based upon an improper predicate, conclusory and should be stricken. Defendant therefore denies same. 36. Defendant incorporates its answers to paragraphs 7 through 50 in response to the averments of paragraph 51 of the Complaint. 37. The allegations of paragraph 52 of the Complaint are denied. 38. The averments of paragraph 53 of the Complaint are denied. 39. The averments of paragraph 54 of the Complaint are presumptive, based upon an improper predicate, conclusory and should be stricken and same are hereby denied. 40. The allegations of paragraph 55 of the Complaint are denied. 41. The allegations of paragraph 52 of the Complaint are denied as stated as Knox County Schools is not sui juris. 42. The allegations of paragraph 53 of the Complaint are denied. 43. The allegations of paragraph 54 of the Complaint are denied. 44. For answer to paragraph 55 of the Complaint, Defendant adopts and incorporates its prior responses to paragraphs 7 through 54. 45. The allegations of paragraph 56 of the Complaint are denied. 46. The allegations of paragraph 57 of the Complaint are denied. 47. Plaintiffs are not entitled to any damages or relief from Defendant. 5 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 5 of 7 PageID #: 49 48. To the extent that an allegation has not been answered, it is denied. 49. Plaintiffs have failed to state a claim for which relief can be granted. 50. After a full investigation, DCS concluded that the allegations against Ms. Peterson were unfounded. 51. Plaintiffs' claim is barred by virtue of Plaintiffs' failure to exhaust their administrative remedies under the Individuals with Disabilities Education Improvement Act of 2004. 52. No policy or custom of Knox County Board of Education was the moving force behind any constitutional tort committed against Plaintiff, if any were committed. 53. Defendant is entitled to sovereign immunity. 54. Defendant is immune pursuant to the Governmental Tort Liability Act. 55. Pursuant to 42 U.S.C. ? 1988, Defendant is entitled to recover damages from Plaintiff, including but not limited to attorney fees and costs. 56. Defendant reserves the right under the Federal Rules of Civil Procedure to seek leave of this Honorable Court to amend its answers upon the discovery of evidence. Respectfully submitted this 20th day of November, 2012. s/David L. Buuck DAVID L. BUUCK (BPR # 007210) Chief Deputy Knox County Law Director Suite 612 City County Building 400 Main Street Knoxville, TN 37902 (865) 215-2327 Attorney for Knox County Schools and Richard Ward 6 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 6 of 7 PageID #: 50 CERTIFICATE OF SERVICE I hereby certify that on November 20, 2012 a copy of the foregoing Answer was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular United States mail, postage prepaid. Parties may access this filing through the Court's electronic filing system. s/David L. Buuck __________________________________ DAVID L. BUUCK 7 Case 3:12-cv-00557 Document 6 Filed 11/20/12 Page 7 of 7 PageID #: 51