IN THE CIRCUIT COURT OF DEKALB COUNTY, ALABAMA

C.S. as mother and next friend of )

T.W., a minor, )
)
Plaintiffs, )
)
vs. ) Case No. CV-2014-900078
)
DEKALB COUNTY BOARD OF )
EDUCATION, ROBERT RICHEY, )
TIM ARNOLD, ADAM NIBLETT, )
et al., )
)
Defendants. )
ANSWER
COMES NOW the Defendant identified as Adam Niblett and provide this his Answer to
plaintiffs Complaint:
1. The defendant pleads the general issue; denies all material averments of plaintiffs
Complaint, except admits paragraph 10; and demands strict proof of the remainder thereof.
2. This defendant says that he is innocent of the allegations against him.
3. The Complaint fails to state a claim against this defendant upon which relief can be granted.
4. Count II of the Complaint fails to state a claim against this defendant upon which relief can
be granted.
5. This defendant pleads the defenses of State-agent immunity, state-actor immunity,
discretionary immunity, and discretionary function immunity.
6. This defendant pleads the defense of immunity as provided by multiple statutes, both state
and federal.
7. This defendant pleads the defense of qualified immunity.
ELECTRONICALLY FILED
5/22/2014 2:09 PM
28-CV-2014-900078.00
CIRCUIT COURT OF
DeKALB COUNTY, ALABAMA
PAM SIMPSON, CLERK
8. To the extent this defendant is sued in his official capacity, defendant pleads sovereign
immunity.
9. The defendant pleads the defense of school masters immunity.
10. This defendant stands in loco parentis to the plaintiff student and, as such, the proper burden
of proof against him is by clear and convincing evidence, not any other standard.
11. The defendant pleads parental immunity because he stands in loco parentis of the plaintiff
student.
12. To the extent this defendant is sued in his official capacity, defendant pleads that punitive
damages cannot be assessed against a government entity.
13. This defendant denies the existence of any actionable duty.
14. The defendant denies the breach of any duty.
15. The defendant denies the breach of any professional duty.
16. The defendant denies that any action or inaction by him caused or contributed to cause the
injuries complained of.
17. The defendant pleads the defense of lack of proximate cause.
18. The defendant pleads sufficient intervening cause.
19. The defendant pleads criminal acts of another.
20. The Complaint is not justiciable.
21. The plaintiffs have failed to exhaust administrative remedies.
22. The Court is without jurisdiction since the plaintiffs sole remedies lie with the State of
Alabama Board of Adjustment.
23. The defendant pleads the statutory cap on damages.
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24. The defendant says the measure of damages on any item of special damage is the amount
taken in satisfaction of that item of special damage, not the amount billed by the provider.
Thus, the medical expenses incurred by the plaintiffs are not the amount of the expenses
themselves, but the amount accepted by the medical provider in satisfaction of said bills.
25. The defendant pleads the following challenges to the constitutionality and applicability of
an award of punitive damages:
Punitive damages are prohibited by federal law against the defendant. The defendant
is mindful of federal and state law on this issue and pleads in good faith the
following:
Plaintiffs claim of punitive damages violates the Fourth, Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States Constitution, on the following grounds:
a. Plaintiffs claim of punitive damages violates the Due Process and Equal
Protection Clauses of the Fifth and Fourteenth Amendments of the United
States Constitution in that it seeks to impose punitive damages, which are
penal in nature, against civil defendants which would deprive the civil
defendants of the same procedural safeguards afforded to criminal
defendants; and
b. Plaintiffs claim of punitive damages violates the defendants rights to due
process pursuant to the Due Process Clause of the Fourteenth Amendment of
the United States Constitution in that it fails to provide specific standards for
the amount of an award of punitive damages; and
c. Plaintiffs claim of punitive damages violates the Due Process Clause of the
Fifth and Fourteenth Amendments of the United States Constitution in that
it fails to provide a reasonable limit on the amount of an award of punitive
damages; and
d. Plaintiffs claim of punitive damages violates the Due Process Clause of the
Fifth and Fourteenth Amendments of the United States Constitution in that
it is unconstitutionally vague; and
e. Plaintiffs claim of punitive damages violates the Due Process Clause of the
Fifth and Fourteenth Amendments of the United States Constitution in that
it would constitute a deprivation of property without due process of the law;
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and
f. Plaintiffs claim of punitive damages violates the Due Process Clause of the
Fifth and Fourteenth Amendments and the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution in that it would
permit the imposition of punitive damages in excess of the maximum
criminal fine for the same or similar conduct; and
g. Plaintiffs claim of punitive damages violates the Eighth Amendment of the
United States Constitution in that it would constitute an excessive fine as well
as cruel and unusual punishment.
Further, based on both the Due Process Clause and the Eighth Amendment, on appeal, the
constitutionality of an award of punitive damages is to be reviewed using a de novo standard, since
the jurys award of punitive damages does not constitute a finding of fact.
Since the plaintiffs are pursuing state law claims, the defendant adds that the plaintiffs claim
of punitive damages violates the Due Process Clause of the Alabama Constitution (1901), on the
following grounds:
a. Plaintiffs claim of punitive damages seeks to impose punitive damages,
which are penal in nature, against civil defendants which would deprive the
civil defendants of the same procedural safeguards afforded to criminal
defendants; and
b. Plaintiffs claim of punitive damages fails to provide specific standards for
the amount of an award of punitive damages; and
c. Plaintiffs claim of punitive damages fails to provide a reasonable limit on
the amount of an award of punitive damages; and
d. Plaintiffs claim of punitive damages is unconstitutionally vague; and
e. Plaintiffs claim of punitive damages would constitute a deprivation of
property without due process of the law; and
f. Plaintiffs claim of punitive damages would permit the imposition of punitive
damages in civil cases in excess of the maximum criminal fine established by
Title 13 of the Alabama Code for the same or similar conduct.
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Further, to the extent state law and the Alabama Constitution provide substantive rights, the
defendant says:
a. Plaintiffs claim of punitive damages violates Article I, 15 of the Alabama
Constitution (1901) in that it would constitute an excessive fine as well as
cruel and unusual punishment.
b. Plaintiffs claim of punitive damages violates Article I, 10, Clause 1 of the
United States Constitution and Article I, 22 of the Alabama Constitution
(1901) in that it violates the prohibition against laws that impair the
obligations of contracts.
c. Plaintiffs claim of punitive damages would constitute an unreasonable and
excessive award in that it bears no reasonable relationship to any harm the
plaintiffs allegedly suffered as a result of the defendants conduct or any harm
that actually occurred to the plaintiffs.
d. Plaintiffs claim of punitive damages is subject to the clear and convincing
and substantial evidence standards of proof contained in Alabama Code
6-11-20(4) (1975) pursuant to the Due Process Clause of the Alabama
Constitution (1901).
e. The defendant pleads the applicable sections of Alabama Code 6-11-21, as
amended by the 1999 Regular Session of the Alabama Legislature and as
signed into law by the Governor. Specifically, the defendant pleads the
restrictions and regulations on an award of punitive damages.
f. The defendant further pleads all other applicable punitive damage caps
currently in the Alabama Code, even if such caps have previously been
declared unconstitutional by the Supreme Court, specifically stating that the
Alabama Supreme Court has issued an opinion expressing its interest in
revisiting the constitutionality of caps on punitive damages.
26. The defendant pleads in pari delicto and/or particeps criminis.
27. The defendant pleads unclean hands.
28. The defendant pleads contributory negligence and/or assumption of the risk.
29. The defendant pleads the defense of last clear chance.
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30. The plaintiffs prayer for relief is faulty.
a. There are no grounds for a preliminary or permanent injunction here and the plaintiff
does not plead any circumstances justifying such.
b. The plaintiff has not pleaded properly to require the Board of Education to implement
any type of program or task force; such request is not proper against the Board of
Education due to separation of powers; and such request is impossible against this
defendant.
c. Attorneys fees cannot be recovered under Alabama law on the claims made by the
plaintiff.
d. The plaintiffs request for an order, not a judgment, for damages is not proper under
Alabama law; and
e. A vague request for a other and further relief as the Court may deem just and
proper does not put this defendant on proper notice of a claim for equitable relief.
f. The plaintiff does not have standing for equitable relief.
31. This defendant adopts the affirmative defenses pleaded by the other defendants.
32. This defendant reserves the right to add defenses as discovery progresses.
/s/ Mark S. Boardman
Mark S. Boardman (ASB-8572-B65M)
Katherine H. Watkins (ASB-5374-B34K)
BOARDMAN, CARR, BENNETT, WATKINS,
HILL & GAMBLE, P.C.
400 Boardman Drive
Chelsea, Alabama 35043
(205) 678-8000
(205) 678-0000 Facsimile
/s/ J. Eric Brisendine
J. Eric Brisendine
SCRUGGS DODD & BRISENDINE,
ATTORNEYS, P.A.
207 Alabama Avenue SW
PO Box 681109
Fort Payne, Alabama 35968
(256) 845-5932
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CERTIFICATE OF SERVICE
I hereby certify that on this 22 day of May, 2014, I electronically filed the foregoing with
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the Clerk of Court using the AlaFile electronic filing system. The following either are registered
with the AlaFile system and will receive a copy electronically or have been served this date by
mailing a copy of the same by Untied States Mail properly addressed and first class postage prepaid,
to wit:
Tommy James
LAW OFFICES OF TOMMY JAMES
2700 Corporate Drive, Suite 200
Birmingham, Alabama 35242
Taylor Brooks
LANIER FORD SHAVER & PAYNE, PC
PO Box 2087
Huntsville, AL 35804-2087
James Turnbach
TURNBACH WARREN LLOYD FREDERICK &
SMITH, PC
PO Box 129
Gadsden, AL 35902-0129
/s/ Mark S. Boardman
OF COUNSEL
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