REPLY TO DEFENDANTS’ ANSWER TO AMENDED COMPLAINT

by | Jun 3, 2024 | Complaint

XXXX DISTRICT COURT

FOR THE NORTHERN DISTRICT OF XXXX

XXXX,                                     Plaintiff     vs.  CITY OF XXXX, et al.,                                    DefendantsCase No. XXXX   REPLY TO DEFENDANTS’ ANSWER TO AMENDED COMPLAINT

Plaintiff XXXX (hereinafter “Plaintiff”) pro se, and files this Reply to Defendants’ Answer to Amended Complaint. In support thereof, Plaintiff states as follows:

  1. The Amended Complaint replaces the Original Complaint
  2. In their Answer, Defendants argue that Plaintiff has reasserted causes of action which have previously been dismissed by this Court. It is trite law that the filing of an amended complaint “render[s] the original complaint null and void.”XXXX (“[O]nce accepted, an amended complaint replaces the original.”).
  3. The foresaid jurisprudence clearly shows that filing an amended complaint completely replaces the original complaint. Therefore, Defendants’ arguments fail to the extent that they refer to the original complaint.
  4. Plaintiff’s is entitled to equitable tolling of the statute of limitations
  5. A petitioner seeking equitable tolling must establish two elements: “(1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408 (2005).
  6. Decisions regarding equitable tolling “must be made ‘on a case by case basis’ in light of ‘specific circumstances.'” Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir. 2012) (quoting Holland, 560 U.S. at 649-50.
  7. Defendants argue that Plaintiff’s claims are barred by the statute of limitations. On the contrary, failure of the Plaintiff to institute this action is caused by the Defendants’ actions.

During the trial , the prosecutor withheld exculpatory information from Plaintiff to cause the criminal case to be delayed and to conceal the many civil rights violations by Defendants. Additionally, the City of Brooklyn and McDonnell ignored all of Plaintiff’s legitimate requests. Plaintiff had to hire additional outside council at XXXX, LLP, 1650 Lake Shore Drive, Suite 150, Columbus, Ohio 43204 to request public records concerning citation from XXXX #TR20550 TURNING AT INTERSECTION violation and pursuant to ORC Section 149.43, public records including police reports, citations, dash cam videos, body cam video, and any surveillance videos that the Department may have obtained.

  • It follows; the Defendants failed to disclose pertinent facts, which would help Plaintiff institute his actions against the Defendants. The statute of limitations should therefore be equitably tolled for said reason.
  • Plaintiff’s complaint raises sufficient facts upon which relief can be granted
  • “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Bell Atlantic Corp. v. XXXX
  • Defendants argue that the Complaint fails to state a claim against the Defendants upon which relief can be granted. On the contrary, Plaintiff’s Amended Complaint has presented factual background that establish each cause of action. All the causes of action are supported by facts that evidence the Defendants’ blameworthy conduct. It follows; Defendants’ argument falls in that regard.
  • Plaintiff’s action is not barred either by the doctrines in Heck v. Humphrey of the Rooker-Feldman doctrine
  • In XXXX, the Supreme Court held that a plaintiff may not challenge the validity of his conviction or the duration of his sentence pursuant to Section 1983, unless one of the following exceptions applies. The conviction or sentence must have been either (1) reversed on direct appeal; (2) expunged by executive order; (3) declared invalid by a state tribunal authorized to make such determination; or (4) called into question by a federal court’s issuance of a writ of habeas corpus. Id. at 487, 114 S.Ct. 2364. “The prisoner cannot use § 1983 to obtain relief where success would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 74–75, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).
  • Courts recognize exceptions to the Rooker-Feldman doctrine. See Richard v. Hoechst Celanese Chemical Group, Inc., 355 F.3d 345 (5th Cir. 2003). Accordingly, there are three exceptions to the doctrine, namely, exceptions based on a void judgment, fraud, and a denial of due process. Id.
  • Defendant argues that 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. Plaintiff asserts that the citation that was issued against him was dismissed. Notably, Plaintiff prevailed in the Parma Municipal Court against Defendants and obtained a dismissal of the false citation issued by Aftim.
  • Besides, the citation was obtained in violation of due process. Plaintiff’s Amended Complaint describes in pertinent detail how the Defendants violated his due process rights. For instance, the officers search, seized, and detained Plaintiff without probable cause. They also denied him his right to counsel. It follows; the doctrines relied on by the Defendants fail.
  • The Plaintiff’s claims are not barred by qualified immunity
  • Qualified immunity applies to government officials when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As with an excessive force claim, qualified immunity looks to “the objective reasonableness of an official’s conduct.” Id. It is a fact-intensive inquiry.
  • When a defendant asserts qualified immunity, the burden shifts to the plaintiff, who must overcome the defense. See Newman v. Guedry, 703 F.3d. 757, 761 (5th Cir. 2012). To do so at the motion to dismiss stage, the plaintiff must allege “that (1) the defendant violated the plaintiff’s constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016) (quotation marks and citation omitted).
  • Defendants argue that the allegations in Plaintiff’s Amended Complaint are barred under the principles of qualified immunity. On the contrary, the Amended Complaint contains pertinent facts showing how the Defendants violated Plaintiff’s due process rights. As Plaintiff has already stated, the Defendants searched, seized, and detained Plaintiff without probable cause. The Defendants also denied Plaintiff’s right to counsel. It follows; the claims in Plaintiff’s Amended Complaint are not barred by qualified immunity.
  • The suit is not barred by state immunity
  • “There are three exceptions to sovereign immunity: (1) when the state has waived immunity by consenting to the suit; (2) when Congress has expressly abrogated the states’ sovereign immunity, and (3) when the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), applies.” Puckett v. Lexington-Fayette Urban Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016).
  • “Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state official’s actions violate the constitution or federal law is not deemed a suit against the state, and so barred by sovereign immunity, so long as the state official is the named defendant and the relief sought is only equitable and prospective.” Westside Mothers v. Haveman, 289 F.3d 852, 860-61 (6th Cir. 2002)
  • Defendants argue that 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.
  • Here, Plaintiff seeks equitable relief from the Defendants’ conduct. It is a settled principle of equity that equity does not suffer a wrong to be without a remedy. In the Amended Complaint, Plaintiff has demonstrated how the Defendants violated Plaintiff’s rights. It is therefore against the principles of equity for the Defendants’ conduct to go without legal redress.
  • Plaintiff duly followed all police directives
  • Defendants argue that 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 Plaintiff knowingly violated police orders, all of which bar Plaintiff’s claim for damages.
  • Contrary to the Defendants’ assertions, Plaintiff duly followed all directives issued by the officers at the time of his seizure, search, and detention. He also answered all questions posed on him, and complied to all instruction. There is nothing on the record showing Plaintiff’s refusal to follow the officers’ directives.
  • Plaintiff never behaved adversely
  • Defendants argue that 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.
  • Contrary to the Defendants’ assertions, there is nothing on the record showing Plaintiff’s adverse conduct. Notably, Plaintiff complied with all of the officers’ directions. He complied to all of the instructions, and answered all questions, even those that were personal in nature.
  • Waiver, estoppel, and/or consent do not apply
  • Defendants argue that the allegations in Plaintiff’s Amended Complaint are barred under principles of waiver, estoppel, and/or consent.
  • Contrary to Defendants’ assertions, Plaintiff has not waived any of his right to seek legal redress against the Defendants. First, Plaintiff challenged the citation, and it was dismissed. Next, Plaintiff instituted suits against the officers, including the instant suit. It follows; the Defendants’ arguments fail.
  • Defendants are solely responsible for Plaintiff’s damages
  • Defendants argue that 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.
  • Contrary to Defendants’ assertions, Defendants are the only parties responsible for Plaintiff’s harm and/or injury. Notably, the Amended Complaint clearly shows how the Defendants violated Plaintiff’s rights.
  • Defendants are not entitled to any set-off
  • Defendants argue that they 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.
  • Contrary to Defendants’ averments, the Plaintiff did not contribute to any of the harm and/or injury he suffered as a result of the Defendants’ actions. Plaintiff should be compensated fully for the Defendants’ violations of his constitutional rights.  
  • Defendants had notice of the suit
  • Defendants argue that 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.
  • In response to Defendants’ assertion, Plaintiff asserts that the Defendants already have notice of the claims in the Amended Complaint. Defendants’ averments therefore fail. 

Respectfully submitted,

Dated: __________

______________________________

XXXX

Plaintiff, pro se

CERTIFICATE OF SERVICE:

The undersigned hereby certifies that the above and foregoing was served by regular U.S. Mail, postage prepaid, on the Defendants:

[ENTER DEFENDANTS’ ADDRESS]

Dated: _____________         

______________________________

XXXX

Plaintiff, pro se