BCPS Response to 227 RL Complaint 9.13.13
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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA Case No.: 1:13-cv-00227-MR-DLH R.L., AS LAWFUL GUARDIAN AD LITEM OF MINOR CHILD, A.L., Plaintiff, v. BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION, KATHY AMOS, DAVID BURLESON, JOHN ROES 1-10 and MICHAEL ANDREW ALEXANDER Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ANSWER OF BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION, KATHY AMOS AND DAVID BURLESON Now come defendants, Burke County Public Schools Board of Education (hereinafter “Board”), Kathy Amos (hereinafter “Amos”), and David Burleson (hereinafter “Burleson “) and Answer plaintiffs’ Complaint as follows: INTRODUCTION 1. It is admitted upon information and belief that law enforcement officers discovered a child pornography ring. It is further admitted that defendant Alexander has been arrested, charged and sentenced for various crimes under North Carolina law. Except as admitted, these answering defendants lack sufficient information to form a belief as to the truth or falsity of the remaining allegations of paragraph 1 and they are thus denied. 2. It is admitted that defendant Alexander was a teacher with the Board's school system for approximately 12 years. It is further admitted that defendant Alexander has admitted giving M.G. a concoction containing his semen. Except as admitted, these answering defendants lack sufficient information to form a belief as to the truth or falsity of the remaining allegations of paragraph 2 and they are thus denied. 3. It is admitted that Defendant Alexander has admitted to giving a portion of a necklace to the minor plaintiff. It is further admitted that Defendant Alexander has admitted to maintaining a portion of the necklace. Upon information and belief the minor plaintiff maintained her portion of the necklace. It is also admitted upon information and belief that Defendant Alexander photographed the minor plaintiff. Case 1:13-cv-00227-MR-DLH Document 10 Filed 09/13/13 Page 1 of 14
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BCPS responds to the complaint filed on behalf of RL
Transcript of BCPS Response to 227 RL Complaint 9.13.13
IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NORTH CAROLINA
Case No.: 1:13-cv-00227-MR-DLH
R.L., AS LAWFUL GUARDIAN AD LITEMOF MINOR CHILD, A.L.,
Plaintiff,
v.
BURKE COUNTY PUBLIC SCHOOLSBOARD OF EDUCATION, KATHYAMOS, DAVID BURLESON, JOHN ROES1-10 and MICHAEL ANDREWALEXANDER
Defendants
)))))))))))))))
ANSWER OF BURKE COUNTYPUBLIC SCHOOLS BOARD OF
EDUCATION, KATHY AMOS ANDDAVID BURLESON
Now come defendants, Burke County Public Schools Board of Education(hereinafter “Board”), Kathy Amos (hereinafter “Amos”), and David Burleson (hereinafter“Burleson “) and Answer plaintiffs’ Complaint as follows:
INTRODUCTION
1. It is admitted upon information and belief that law enforcement officers discovereda child pornography ring. It is further admitted that defendant Alexander has beenarrested, charged and sentenced for various crimes under North Carolina law.Except as admitted, these answering defendants lack sufficient information to forma belief as to the truth or falsity of the remaining allegations of paragraph 1 and theyare thus denied.
2. It is admitted that defendant Alexander was a teacher with the Board's schoolsystem for approximately 12 years. It is further admitted that defendant Alexanderhas admitted giving M.G. a concoction containing his semen. Except as admitted,these answering defendants lack sufficient information to form a belief as to thetruth or falsity of the remaining allegations of paragraph 2 and they are thus denied.
3. It is admitted that Defendant Alexander has admitted to giving a portion of anecklace to the minor plaintiff. It is further admitted that Defendant Alexander hasadmitted to maintaining a portion of the necklace. Upon information and belief theminor plaintiff maintained her portion of the necklace. It is also admitted uponinformation and belief that Defendant Alexander photographed the minor plaintiff.
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These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the remaining allegations of paragraph number three and they arethus denied.
4. Denied.
5. Denied.
6. Liability for the violations outlined in paragraph number six are denied as to theseanswering defendants.
7. Paragraph 7 constitutes a legal conclusion and is thus denied.
JURISDICTION AND VENUE
8. Paragraph 8 constitutes a legal conclusion and is thus denied.
9. Paragraph 9 constitutes a legal conclusion and is thus denied.
10. Paragraph 10 constitutes a legal conclusion and is thus denied.
11. Paragraph 11 constitutes a legal conclusion and is thus denied.
PARTIES
12. Admitted upon information and belief.
13. It is admitted that the Board operates Glen Alpine and Hildebran elementaryschools as part of the Burke County Public Schools, pursuant to its statutoryauthority. The North Carolina General Statutes are a matter of public record andare the best evidence of their contents. Except as admitted the remainingallegations of paragraph number 12 are denied.
14. Is admitted that the board properly executes its statutory authority and duties inadministering the Burke County Schools. Except as admitted the remainingallegations of paragraph 14 are denied.
15. Admitted.
16. It is denied that defendant Burleson is a citizen and resident of Burke County. Theremaining allegations of paragraph 16 constitute a legal conclusion and are thusdenied.
17. It is admitted that Defendant Burleson was employed as the superintendent at somepoint in the past. Except as admitted the remaining allegations of paragraph 17 are
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denied.
18. Is admitted that Defendant Amos is a resident of Burke County. The remainingallegations of paragraph 18 constitute a legal conclusion and are thus denied.
19. It is admitted that at some point in the past Defendant Amos was the principal ofGlen Alpine elementary school. It is further admitted that Defendant Amos iscurrently the principal of Patton High School. The remaining allegations ofparagraph 19 are denied.
20. The allegations of paragraph 20 are denied. It is specifically denied that any JohnRoes as described in paragraph 20 exist or have ever existed.
21. Admitted upon information and belief.
22. It is admitted that from approximately August 2000 through June 2012 DefendantAlexander was employed as an elementary school teacher at Glen Alpine andHildebran elementary schools. Except as admitted the remaining allegations ofparagraph 22 are denied.
GENERAL ALLEGATIONS
23. Admitted upon information and belief.
24. Is admitted that Defendant Alexander has admitted to photographing the minorplaintiff. Is further admitted that Defendant Alexander provided the minor plaintiffwith a concoction containing his semen. It is specifically denied that defendantAlexander was acting under the color of law. These answering defendants lacksufficient information to form a belief as to the truth or falsity of the remainingallegations of paragraph 24 and they are thus denied including all its subparts.
25. Denied.
26. Denied.
27. It is admitted upon information and belief that Defendant Alexander has admittedto committing a single act of hands on sexual abuse of a minor on the premises ofGlen Alpine elementary school. It is further admitted upon information and beliefthat Defendant Alexander has admitted to providing up to five minors with aconcoction containing his semen. It is further admitted upon information and beliefthat Defendant Alexander has admitted photographing and videoing students.Except as admitted the remaining allegations of paragraph 27 are denied.
28. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of paragraph 28 and they are thus denied.
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29. Denied.
30. Denied.
31. Denied.
32. Denied.
33. Denied.
34. It is admitted that Defendants Amos and Burleson fully fulfilled all duties requiredof them under the law. The remaining allegations of paragraph 34 are denied.
35. Denied.
36. Denied.
37. Denied.
38. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
39. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
40. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
41. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
42. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
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43. It is admitted that Defendant Board had a Policy Manual in effect for all periodsrelevant for purposes of this lawsuit. Said Policy Manual or Manuals speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of this paragraph are denied.
44. It is admitted that defendant Board had a Communications Plan which speaks foritself and is the best evidence of its contents. Except as admitted the remainingallegations of paragraph 44 are denied.
45. Denied.
46. Denied.
47. Denied.
48. Denied. It is further denied that any John Roes, as described, exist or ever existed.
49. It is admitted that on or about the date alleged Defendant Alexander was arrestedand removed from his teaching post. Except as admitted the remaining allegationsof paragraph 49 are denied.
50. Denied.
51. It is admitted that Defendant Alexander was charged with multiple criminal offenses.Except as admitted the remaining allegations of paragraph 51 are denied.
52. Denied.
53. It is admitted that Defendant Alexander pled guilty to certain limited crimes notinvolving this minor plaintiff and is currently incarcerated with the North CarolinaDepartment of Corrections. Except as admitted the remaining allegations ofparagraph 53 are denied.
54. This paragraph constitutes a legal conclusion and is thus denied.
55. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of paragraph 55 and they are thus denied.
56. Denied.
COUNT I
57. These answering defendants incorporate by reference their answers to paragraphs1 through 56 as if fully set forth herein in.
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58. Denied.
59. Denied.
60. Denied.
61. Denied.
62. Denied.
63. Paragraph 63 and all its subparts are denied.
64. Paragraph 64 and all of its subparts are denied as to these answering defendants.
COUNT II
65. These answering defendants incorporate by reference their answers to paragraphs1 through 64 as if fully set forth herein.
66. Paragraph 66 and all of its subparts are denied.
67. Denied.
68. Denied.
69. Paragraph 69 and all of its subparts are denied as to these answering defendants.
COUNT III
70. These answering defendants incorporate by reference their answers to paragraphs1 through 69 as if fully set forth herein.
71. It is admitted that defendant’s Alexander, Amos and Burleson were all employeesof the Board. Except as admitted the remaining allegations of paragraph 71 aredenied.
72. Denied.
73. Denied.
74. Denied.
75. Denied.
76. Denied.
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77. Denied.
78. Denied.
79. Denied.
80. Denied.
81. Paragraph 81 and all of its subparts are denied as to these answering defendants.
COUNT IV
82. These answering defendants incorporate by reference their answers to paragraphs1 through 81 as if fully set forth herein.
83. Denied.
84. Denied.
85. Denied.
86. Denied.
87. Paragraph 87 and all of its subparts are denied as to these answering defendants.
COUNT V
88. These answering defendants incorporate by reference their answers to paragraphs1 through 87 as if fully set forth herein.
89. Paragraph 89 constitutes a legal conclusion and is thus denied.
90. Paragraph 90 constitutes a legal conclusion and is thus denied.
91. Paragraph 91 constitutes a legal conclusion and is thus denied.
92. Denied.
93. Denied.
94. Denied.
95. Paragraph 95 and all of its subparts are denied as to these answering defendants.
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COUNT VI
96. These answering defendants incorporate by reference their answers to paragraphs1 through 95 as if fully set forth herein.
97. Denied.
98. Denied.
99. Denied.
100. Paragraph 100 and all of its subparts are denied as to these answering defendants.
COUNT VII
101. These answering defendants incorporate by reference their answers to paragraphs1 through 100 as if fully set forth herein.
102. It is admitted that defendants Alexander, Amos and Burleson were employees ofthe Board. Except as admitted the remaining allegations of paragraph 102 aredenied.
103. Denied.
104. Denied.
105. Denied.
106. Denied.
107. Denied.
108. Denied.
109. Denied.
110. Denied.
111. Paragraph 111 and all of its subparts are denied as to these answering defendants.
COUNT VIII
112. These answering defendants incorporate by reference their answers to paragraphs1 through 111 as if fully set forth herein.
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113. Denied.
114. Denied.
115. Denied.
116. Denied.
117. Denied.
118. Paragraph 118 and all of its subparts are denied as to these answering defendants.
COUNT IX
119. These answering defendants incorporate by reference their answers to paragraphs1 through 118 as if fully set forth herein.
120. Paragraph 120 constitutes a legal conclusion and is thus denied.
121. Paragraph 121 constitutes a legal conclusion and is thus denied.
122. Paragraph 122 constitutes a legal conclusion and is thus denied.
123. Denied.
124. Denied.
125. Denied.
126. Denied.
127. Paragraph 127 and all of its subparts are denied as to these answering defendants.
COUNT X
128. These answering defendants incorporate by reference their answers to paragraphs1 through 127 as if fully set forth herein.
129. Denied.
130. Denied as to these answering defendants.
131. Denied as to these answering defendants.
132. Denied as to these answering defendants.
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133. Paragraph 133 and all of its subparts are denied as to these answering defendants.
COUNT XI
134. These answering defendants incorporate by reference their answers to paragraphs1 through 133 as if fully set forth herein.
135. It is admitted that defendant Amos and Burleson were employees of the Board.Except as admitted the remaining allegations of paragraph 135 constitute a legalconclusion and are thus denied.
136. Denied.
137. Denied.
138. Denied.
139. Paragraph 139 and all of its subparts are denied as to these answering defendants.
COUNT XII
140. These answering defendants incorporate by reference their answers to paragraphs1 through 139 as if fully set forth herein.
141. This paragraph constitutes a legal conclusion and is thus denied.
142. Denied.
143. Denied.
144. Denied as to these answering defendants.
145. Paragraph 145 and all of its subparts are denied as to these answering defendants.
COUNT XIII
146. These answering defendants incorporate by reference their answers to paragraphs1 through 145 as if fully set forth herein.
147. It is admitted that defendants Amos and Burleson were employees of Board.Except as admitted the remaining allegations paragraph 147 are denied.
148. Denied.
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149. Paragraph 149 constitutes a legal conclusion and is thus denied.
150. Denied.
151. Denied.
152. Paragraph 152 and all of its subparts are denied as to these answering defendants.
COUNT XIV
153. These answering defendants incorporate by reference their answers to paragraphs1 through 152 as if fully set forth herein.
154. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of this paragraph and they are thus denied.
155. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of this paragraph and they are thus denied.
156. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of this paragraph and they are thus denied.
157. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of this paragraph and they are thus denied.
158. These answering defendants lack sufficient information to form a belief as to thetruth or falsity of the allegations of this paragraph and they are thus denied.
159. Paragraph 159 and all its subparts are denied as to these answering defendants.
FIRST AFFIRMATIVE DEFENSEGOVERNMENTAL IMMUNITY
To the extent there is no waiver of immunity, these answering defendants areentitled to sovereign and/or governmental immunity for each and every claimasserted against each of them in the Complaint.
SECOND AFFIRMATIVE DEFENSEFAILURE TO STATE A CLAIM
Pursuant to Federal Rule of Civil Procedure 12(b) plaintiffs fail to state a claimagainst theses answering defendants and this action against them should bedismissed.
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THIRD AFFIRMATIVE DEFENSEQUALIFIED IMMUNITY
All actions by the individual defendants Amos and Burleson were objectivelyreasonable under the circumstances then and there existing, and they are entitledto qualified immunity.
FOURTH AFFIRMATIVE DEFENSEPUBLIC OFFICER IMMUNITY
Defendants Amos and Burleson are entitled to Public Officer Immunity.
FIFTH AFFIRMATIVE DEFENSEPUNITIVE DAMAGES
Punitive damages against local, governmental bodies, their officials and theiremployees are barred by governmental immunity and otherwise. Further, an awardof punitive damages against theses answering defendants is unjustified andunconstitutional.
SIXTH AFFIRMATIVE DEFENSEPUBLIC DUTY DOCTRINE
Plaintiffs’ claims against these answering defendants are barred by the Public DutyDoctrine.
SEVENTH AFFIRMATIVE DEFENSESTATUTORY IMMUNITY
These Defendants assert immunity as outlined and provided in any Federal or StateStatute, including but not limited to the immunity granted in NC Code Anno. §115C-44.
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WHEREFORE, having fully answered the Complaint of the Plaintiffs, these Defendantspray that the Plaintiff’s Complaint be dismissed or, in the alternative, for a trial by jury,together with the costs and disbursements of this action and for such other and furtherrelief as this Court may deem just and proper.
This the 13 day of September, 2013.th
CLAWSON AND STAUBES, LLC
s/ Andrew J. SantanielloAndrew J. SantanielloNC BAR No.: 23532756 Tyvola Rd., Suite 130Charlotte, NC [email protected] for Defendants Burke County SchoolsBoard of Education, Amos and Burleson
CAMPBELL SHATLEY, PLLC
s/ K. Dean Shatley, IIK. Dean Shatley, IINC BAR No.: 31782674 Merrimon Ave., Suite 210Asheville, NC [email protected] for Defendants Burke County SchoolsBoard of Education, Amos and Burleson
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that in conformity with Rule 5 of the Rules ofCivil Procedure that a true copy of the foregoing pleading has been served upon allparties entitled or required to be served by mailing a copy of the document in a properlyaddressed envelope with sufficient postage affixed thereto. Alternatively, and further,pursuant to Fed. R. Civ. P. 5 and Local Civil Rule 5.3 this documenthas been filed by electronic means in compliance with the rules and service has beeneffected by electronic means through the Court’s transmission facilities as authorizedby Rule 5.3 and in conformity of these rules this 13 day of September, 2013.th
Mr. Michael A. AlexanderOffender ID: 1328076NC Central Prison1300 Western Blvd.Raleigh, NC 27606
Via ECF:
Douglas E. Fierberg Jennifer Eaker [email protected] [email protected]
Peter C. [email protected]
James W. [email protected]
Robert M. [email protected]
CLAWSON AND STAUBES, LLC
s/ Andrew J. SantanielloAndrew J. SantanielloNC BAR No.: 23532756 Tyvola Rd., Suite 130Charlotte, NC [email protected] for Defendants Burke County SchoolsBoard of Education, Amos and Burleson
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