31 pleading - answer to ssc
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ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (91 6) 444-6405
E-mail: [email protected] Bernard C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]
Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,Jennifer Abraham, Scott Ragland, Toni Smithand William Roy
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.
Plaintiff,
vs.
COUNTY OF KERN , et al.,
Defendants.
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Case No.: 1:07-cv-26
ANSWER TO SECOND
SUPPLEMENTAL COMPLAINT
Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental
Complaint as follows:
1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.
2. Defendants admit the allegations contained in paragraph 4.
3. Defendants deny the allegations contained in paragraph 5.
mailto:[email protected]:[email protected]:[email protected]:[email protected] -
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5. In response to the allegations contained in paragraph 8, Defendants admit that
Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
during most of the time alleged in the Complaint. Defendants deny the remaining allegationscontained in paragraph 8.
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8. In response to the allegations contained in paragraph 16, Defendants admit that
Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a
belief as to the truth of the remaining averments in paragraph 16.
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9. In response to the allegations contained in paragraph 17, Defendants admit that
Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
Chair of the Pathology Department. Defendants deny all remaining allegations contained in
paragraph 17.
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10. In response to the allegations contained in paragraph 18, Defendants admit that
Plaintiff complained about departmental procedures and policies at Kern Medical Center and
interfered with patient care provided by Kern Medical Center and its physicians. Defendants
deny all remaining allegations contained in paragraph 18.
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12. In response to the allegations contained in paragraph 21, Defendants admit that
Plaintiff requested and received multiple leaves of absence and that the terms and conditions of
the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining
allegations contained in paragraph 21.
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13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendants
admit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was
removed from his position as Chair of the Pathology Department because he was neither working
full-time nor present in the hospital and that his compensation was reduced. Defendants also
admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote
4. Defendants admit the allegations contained in paragraphs 6 and 7.
6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.
7. Defendants deny all the allegations contained in paragraph 15.
11. Defendants deny all the allegations contained in paragraphs 19 and 20.
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ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
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letters to several physicians and administrators at Kern Medical Center and other health care
organizations and was placed on administrative leave. Defendants deny all remaining allegations
in those paragraphs.
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16. In answer to the allegations contained in paragraph 27, Defendants admit that
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
paragraph 27.
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17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
of Chair of the Pathology Department and that he was compensated and provided with certain
benefits pursuant to a written employment agreement. Defendants deny all remaining allegations
contained in paragraphs 28 and 29.
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18. In response to the allegations contained in paragraph 30, Defendants admit that
Plaintiff was expected to be an effective member of the physicians staff at Kern Medical Center
and to contribute to the overall improvement of the hospital. Defendants deny all remaining
allegations contained in paragraph 30.
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19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
admit that interpretation of the referenced documents is a question of law. Defendants deny all
remaining allegations contained in those paragraphs.
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21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
admit that interpretation of the referenced documents is a question of law. Defendants deny all
remaining allegations contained in those paragraphs.
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In response to the allegations contained in paragraph 25, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that was
previously assigned to him. Defendants deny all remaining allegations contained in paragraph
25.
15. Defendants deny all the allegations contained in paragraph 26.
20. Defendants admit the allegations contained in paragraph 34.
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24. In response to the allegations contained in paragraphs 40 and 41, Defendants
admit that Plaintiffs former attorney sent a letter to Bernard Barmann and that Plaintiff met with
Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
contained in those paragraphs.
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25. In response to the allegations contained in paragraphs 42 and 43, Defendants
admit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed
with other staff physicians about patient care and wrote letters expressing his disagreement.
Defendants deny all remaining allegations contained in those paragraphs.
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26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,
Defendants admit that disagreements arose between Plaintiff and William Roy regarding the
review of pathology reports, the timeliness and accuracy of Plaintiffs pathology reports and
Plaintiffs management of the Pathology Department and that letters were written by the Plaintiff
and others regarding these issues. Defendants deny all remaining allegations contained in those
paragraphs.
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27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and
54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern
Medical Center, including some of the Defendants, regarding the review of pathology reports,
the timeliness and accuracy of Plaintiffs pathology reports, Plaintiffs management of the
Pathology Department, hospital policies and procedures and patient care. Defendants further
admit that letters were written by the Plaintiff and others regarding these issues. Defendants
deny all remaining allegations contained in those paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 38.
23. In response to the allegations contained in paragraph 39, Defendants admit that
Plaintiff complained about policies and procedures at Kern Medical Center and that his actionsinterfered with patient care. Defendants deny all remaining allegations contained in paragraph
39.
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28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,
Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
prevented appropriate discussion of case management and that other physicians at Kern Medical
Center, including some of the Defendants, were concerned about Plaintiffs conduct and with hisinterference with patient care. Defendants further admit that letters were written by Plaintiff,
William Roy and others about the incident. Defendants deny all remaining allegations in those
paragraphs.
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30. In response to the allegations contained in paragraph 64, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the averments contained in
paragraph 64.
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31. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
Defendants regarding Plaintiffs conduct and criticism of Kern Medical Centers policies and
procedures. Defendants deny all remaining allegations contained in those paragraphs.
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33. In response to the allegations contained in paragraph 74 and 75, Defendants admit
that Plaintiffs entitlement to leave under FMLA and CFRA is a question of law. Defendants
deny all remaining allegations contained in those paragraphs.
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34. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
for multiple reasons and that there are several documents authored by Plaintiff and others
regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all
remaining allegations in those paragraphs.
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35. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
regarding leaves of absence. Defendants deny that Plaintiff engaged in any whistleblowing
29. Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.
32. Defendants deny all the allegations contained in paragraph 73.
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activity and that Plaintiff is or ever was a whistleblower. Defendants deny all remaining
allegations in those paragraphs.
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37. In response to the allegations contained in paragraphs 89, 90, 91 and 92,
Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
leaves of absence that Plaintiff requested and Plaintiffs tenure as Chair of the Pathology
Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the
Joint Conference Committee voted to remove Plaintiff from his position as Chair of the
Pathology Department at Kern Medical Center. Defendants deny all remaining allegations
contained in those paragraphs.
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39. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
Defendants admit that Plaintiffs employment agreement was amended to reduce Plaintiffs base
compensation and that Plaintiff continued to send and receive written communications to others
regarding his leaves of absence. Defendants deny all remaining allegations contained in those
paragraphs.
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40. In response to the allegations contained in paragraph 99, Defendants admit that
Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
remaining allegations contained in paragraph 99.
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42. In response to the allegations contained in paragraphs 101 and 102, Defendants
admit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny
all remaining allegations contained in those paragraphs.
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. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 87 and 88.
38. Defendants deny all the allegations contained in paragraph 93.
41. Defendants deny all the allegations contained in paragraph 100.
3. In response to the allegations contained in paragraph 103, Defendants admit that
Plaintiff has been provided with the information he requested from the County-owned computer
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that was previously assigned to him. Defendants deny all remaining allegations contained in
paragraph 103.
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48. In response to the allegations contained in paragraphs 108, 109 and 110,
Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
Plaintiffs request for leaves of absence. Defendants deny all remaining allegations contained in
those paragraphs.
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50. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
others to discuss those subjects. Defendants deny all remaining allegations contained in those
paragraphs.
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52. In response to the allegations contained in paragraphs 120, 121 and 122,
Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
Plaintiffs leaves of absence and performance as Chair of the Pathology Department. Defendants
deny all remaining allegations contained in those paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 104.5. In answer to the allegations contained in paragraph 105, Defendants admit that
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
paragraph 105.
46. In response to the allegations contained in paragraph 106, Defendants admit that
Plaintiff requested and received a reduced work schedule. Defendants deny all remaining
allegations contained in paragraph 106.
7. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 107.
49. Defendants deny all the allegations contained in paragraph 111.
1. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 118 and 119.
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58. In response to the allegations contained in paragraph 136, Defendants admit that
Plaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career
or business opportunities he desires. Defendants deny all remaining allegations contained in
paragraph 136.
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60. In response to the allegations contained in paragraph 138, Defendants admit that
Plaintiffs base compensation as a staff pathologist is less than it was when he was Chair of the
Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.
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62. In response to the allegations contained in paragraph 145, Defendants admit that
Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
Defendants deny all remaining allegations contained in paragraph 145.
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. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 123.
4. In answer to the allegations contained in paragraph 124, Defendants admit that
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained inparagraph 124.
. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
128.
. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
133 and 134.
57. Defendants deny all the allegations contained in paragraph 135.
59. Defendants deny all the allegations contained in paragraph 137.
1. Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,
143 and 144.
3. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 146 and 147.
4. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.
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71. In response to the allegations contained in paragraph 161, Defendants admit that
interpretation of Labor Code 1102.5 is a matter of law. Defendants deny all remaining
allegations contained in paragraph 161.
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75. In response to the allegations contained in paragraphs 168, 169 and 170,
Defendants admit that interpretation of Government Code 12945.2(a)(1) and Title 2 of
California Code of Regulations 7297.7(a) and 7297.2(c) is a matter of law. Defendants deny
all remaining allegations contained in those paragraphs.
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. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 153.
. Defendants incorporate herein, all of their responses to paragraphs 1 through 153,
inclusive.7. In response to the allegations contained in paragraph 155, Defendants admit that
interpretation of Health and Safety Code 1278.5 is a matter of law. Defendants deny all
remaining allegations contained in paragraph 155.
. Defendants deny all the allegations contained in paragraphs 156, 157 and 158 and
further deny that Plaintiff has engaged in any whistleblowing activity or is a whistleblower.
9. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 159.
0. Defendants incorporate herein, their responses to paragraphs 1 through 159,
inclusive.
2. Defendants deny all the allegations contained in paragraphs 162, 163, 164 and
165 and further deny that Plaintiff made any whistleblowing reports.
3. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 166.
74. Defendants incorporate herein, their responses to 1 through 166, inclusive.
76. Defendants deny all the allegations contained in paragraphs 171 and 172.
7. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 173.
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83. In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,
186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a
question of law. Defendants deny all remaining allegations contained in those paragraphs.
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87. In response to the allegations contained in paragraph 194, Defendants admit that
interpretation of the California Fair Employment and Housing Act is a question law. Defendants
deny all remaining allegations remaining in paragraph 194.
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. Defendants incorporate herein, their responses to paragraphs 1 through 173,
inclusive.
9. In response to the allegations contained in paragraph 175, Defendants admit that
interpretation of 29 U.S.C. 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(a) is a matter of law.Defendants deny all remaining allegations contained in paragraph 175.
80. Defendants deny all the allegations contained in paragraphs 176, 177 and 178.
. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 179.
2. Defendants incorporate herein, their answers to paragraphs 1 through 179,
inclusive.
84. Defendants deny all the allegations contained in paragraphs 189, 190 and 191.
5. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 192.
6. Defendants incorporate herein, their responses to paragraphs 1 through 192,
inclusive.
88. Defendants deny all the allegations contained in paragraphs 195 and 196.
9. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 197.
0. Defendants incorporate herein, their responses to paragraphs 1 through 197,
inclusive.
91. Defendants deny all the allegations contained in paragraph 199.
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97. In response to the allegations contained in paragraph 205, Defendants admit that
interpretation of the Fourteenth Amendment to the United States Constitution is a question of
law. Defendants deny all remaining allegations contained in paragraph 205.
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104. In response to the allegations contained in paragraphs 228 and 229, Defendants
admit that interpretation of the Code of Federal Regulations, including 20C.F.R. 541.118(1) and
541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 200.
. Defendants incorporate herein, their responses to paragraphs 1 through 200,
inclusive.94. Defendants deny all the allegations contained in paragraph 202.
. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 203.
. Defendants incorporate herein, their responses to paragraphs 1 through 204,
inclusive.
8. Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,
210, 211, 212, 213 and 214.
9. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 215.
0. Defendants incorporate herein, their responses to paragraphs 1 through 215,
inclusive.
1. Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,
221, 222, 223, 224 and 225.
2. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 226.
3. Defendants incorporate herein, their responses to paragraphs 1 through 226,
inclusive.
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105. Defendants deny all the allegations contained in paragraphs 230, 231 and 232.
As and for a first affirmative defense, Defendants allege that Plaintiffs Second
Supplemental Complaint and each and every purported claim contained therein fails to state a
claim upon relief can be granted.As and for a second affirmative defense, Defendants allege that this Court lacks subject
matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over
Plaintiffs state claims because they predominate and the alleged federal claims are insubstantial.
As and for a third affirmative defense, Defendants allege that Defendants actions as
alleged in the Second Supplemental Complaint were privileged under California Evidence Code
sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections
800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants actions
were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge
of official duties and performed in the course of official proceedings authorized by law and that
Defendants and each of them are, therefore, immune from liability.
As and for a fourth affirmative defense, Defendants allege that California Civil Code
section 47(a) and (b) immunizes Defendants and each of them from liability for the matters
alleged in the Second Supplemental Complaint.
As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs
employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behavior contributed
to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
believes he sustained.
As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as
alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff
commenced this action and that Plaintiffs claims are, therefore, barred by the statue of
limitations established in California Code of Civil Procedures 340.
As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as
alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff
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commenced this action and that Plaintiffs claims are, therefore, barred by the statue of
limitations established in California Code of Civil Procedures 335.1.
As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
adequate administrative remedies which he failed to exhaust and that his claims are, therefore,barred.
As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
them have qualified immunity for each and every claim alleged in the Second Supplemental
Complaint because, in doing the things alleged, they were each acting within the course and
scope of their duties as public officials and did not violate any of Plaintiffs constitutional rights
and, even if they did, none of the alleged constitutional rights was clearly established.
WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second
Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
together with such other and further relief as the Court deems just.
Dated: June 20, 2007 LAW OFFICES OF MARK A. WASSER
By: /s/ Mark A. Wasser
Mark A. WasserAttorney for Defendants, County of Kern, et al.