zzzz DISTRICT COURT
NORTHERN DISTRICT OF xxxx
xxxxx
:
xxxx
Plaintiff, : MAG. JUDGE GRIMES
-vs- :
: DEFENDANTS’ ANSWER TO
xxxx et al. : AMENDED COMPLAINT
:
Defendants. : JURY DEMAND ENDORSED HEREON
:
NOW COME DEFENDANTS and for their Answer to Plaintiff’s Amended Complaint
herein aver:
FIRST DEFENSE
The Amended Complaint directly violates the Court’s previous Order granting limited leave
to file an Amended Complaint, as Plaintiff has reasserted causes of action which have previously
been dismissed by this Court.
SECOND DEFENSE
Plaintiff’s Amended Complaint violates the Court’s previous Order as Plaintiff asserts
numerous causes of action under 42 USC §1983 which are governed by the two-year statute of
limitations. Plaintiff’s numerous causes of action under 42 USC §1983 emanate from a January 3,
2021 traffic stop, which is more than two years before Plaintiff brought this original action. Plaintiff
was directly notified of the accrual date of his §1983 cause of action in the Court’s previous Order
granting, in part, the Motion to Dismiss previously filed by these Defendants. Accordingly, Plaintiff’s
causes of action set forth in the Amended Complaint under §1983 are frivolous, repetitive, and in
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violation of the Court’s prior Order.
THIRD DEFENSE
Plaintiff’s Amended Complaint fails to state a claim against these answering Defendants upon
which relief can be granted.
FOURTH DEFENSE
Plaintiff’s Amended Complaint is barred by the applicable statute of limitations.
FIFTH DEFENSE
1. These Defendants deny the allegations set forth in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 18, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 47, 48, 50, 51, 53, 54, 55, 56, 57, 58, 59,
60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,
87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109,
110, 111, 112, 113, 114, 115, 116, 117, 118 of Plaintiff’s Amended Complaint.
2. These Defendants are without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraphs 10, 19, 20, 21, 22, 23, 24, 44, 45, 46, and 49 of
Plaintiff’s Amended Complaint and for lack of said knowledge or information hereby deny the same.
3. These Defendants admit that Plaintiff was lawfully stopped, but further answering state that
they deny the remaining allegations set forth in paragraph 2 of Plaintiff’s Amended Complaint.
4. These Defendants admit that the City of Brooklyn is a political subdivision but are without
sufficient knowledge or information to form a belief as to the truth of the remaining allegations in
paragraph 11 of Plaintiff’s Amended Complaint and for lack of said knowledge or information hereby
deny the same.
5. These Defendants admit that Defendants Mielke, Aftim, Pitts, and Spisak were employees of
the City of Brooklyn but are without sufficient knowledge or information to form a belief as to the
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truth of the remaining allegations set forth in paragraphs 12, 13, 14, and 15 of Plaintiff’s Amended
Complaint and for lack of said knowledge or information hereby deny the same.
6. These Defendants admit that Defendant James J. McDonnell was a prosecutor, lawfully
entitled to prosecutorial immunity for all actions referenced in Plaintiff’s Amended Complaint and
further answering acknowledge that Defendant McDonnell acted at all times within the course and
scope of his employment and further answering deny the remaining allegations set forth in paragraph
16 of Plaintiff’s Amended Complaint.
7. These Defendants deny each and every allegation set forth in Plaintiff’s Amended Complaint
not herein specifically admitted to be true.
SIXTH DEFENSE
Plaintiff’s claims are barred by operation of the doctrines of Heck v. Humphrey and its line of
cases, as well as the Rooker-Feldman doctrine.
SEVENTH DEFENSE
The allegations in Plaintiff’s Amended Complaint are barred under the principles of qualified
immunity.
EIGHTH DEFENSE
The allegations in Plaintiff’s Amended Complaint are barred under principles of state
immunity pursuant to Ohio Revised Code Section 2744.01 et seq. and the common law of Ohio.
NINTH DEFENSE
The allegations in Plaintiff’s Amended Complaint are barred based upon Plaintiff, Philip M.
Waseleski’s assumption of risk, both primary and secondary, as well as Plaintiff Philip M.
Waseleski’s failure to follow police directives and failure to properly abide by lawful police
commands, thus committing dangerous and criminal conduct, as well as other actions in which
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Plaintiff knowingly violated police orders, all of which bar Plaintiff’s claim for damages.
TENTH DEFENSE
The allegations in Plaintiff’s Amended Complaint are barred based upon the conduct of
Plaintiff Philip M. Waseleski whose conduct intervened and superseded any claimed conduct of the
Officer who perceived his actions to be a threat to himself or to the community and thus the Officer
acted appropriately and for the protection of others.
ELEVENTH DEFENSE
The allegations in Plaintiff’s Amended Complaint are barred under principles of waiver,
estoppel, and/or consent.
TWELFTH DEFENSE
The damages of which Plaintiff complains were caused in whole or in part by the person over
whom Plaintiff does not seek recovery, and any alleged damages may be reduced based upon the
tortious conduct of these individuals pursuant to Ohio Revised Code §2307.23.
THIRTEENTH DEFENSE
Plaintiff’s Amended Complaint is barred by the applicable statute of limitations.
FOURTEENTH DEFENSE
These Defendants are entitled to a deduction and set-off against any damages, if any, sustained
by Plaintiff as provided under Ohio law, pursuant to Ohio Revised Code §2744.01 et seq., and other
applicable sections of the Revised Code, and for any benefits received from any policy or policies of
insurance or other sources.
FIFTEENTH DEFENSE
These Defendants are entitled to prosecutorial immunity and as such, Plaintiff’s Amended
Complaint is barred.
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SIXTEENTH DEFENSE
Plaintiff’s Amended Complaint fails for lack of service and service of process, as Plaintiff
failed to secure service within the requisite time mandated by the Federal Rules of Civil Procedure.
WHEREFORE, having fully answered, Defendants, City of Brooklyn, Scott Mielke, Tony
Aftim, Kyle Pitts, Mike Spisak, and James J. McDonnell, demand that Plaintiff’s Amended
Complaint be dismissed, with costs assessed against Plaintiff.
JURY DEMAND
These Defendants demand a trial by jury as to all issues of the within matter.
Respectfully Submitted,
/s/ Mel L. Lute, Jr.
Mel L. Lute, Jr. (0046752)
Tonya J. Rogers (0090439)
BAKER | DUBLIKAR
400 South Main Street
North Canton, Ohio 44720
Telephone: (330) 499-6000
Telecopier: (330) 499-6423
Email: lute@bakerfirm.com
Counsel for Defendants
CERTIFICATE OF SERVICE
The undersigned certifies that a true and accurate copy of the foregoing ANSWER TO
AMENDED COMPLAINT was served by electronic transmission and/or regular US Mail on the
following individuals this 29th day of May, 2024.
Philip M. Waseleski, Pro Se
24 Seminary Street, Unit 195
Berea, Ohio 44017
Email: pwaseleski@yahoo.com
/s/ Mel L. Lute, Jr.
Mel L. Lute, Jr. (0046752)
Tonya J. Rogers (0090439)
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