JAMES G.

RICE, Oregon State Bar ID Number 824884

Deputy City Attorney
Email: Jim.Rice(portlandoregon.gov
Offce of City Attorney
1221 SW 4th Avenue, Rm 430
Portland, OR 97204
Telephone: (503) 823-4047
Facsimile: (503) 823-3089
Attorney for Defendants
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
DANIEL COLLINS,
PLAINTIFF,
Civil Case No. 3:12-cv-01120
v. DEFENDANTS' ANSWER TO
PLAINTIFF'S AMENDED COMPLAINT
CITY OF PORTLAND, a municipal
corporation, DARRLL SHAW, an
individual, MATTHEW DELENIKOS, an
individual, GREGORY BURN, an
individual, DAVID ABRAHAMSON, an
individual,
DEMAND FOR JURY TRIAL
DEFENDANTS.
For its Answer to plaintiffs Amended Complaint, defendants City of Portland, Darell
Shaw, Matthew Delenikos, Gregory Bum and David Abrahamson allege as follows:
1. Defendants admit that the action herein purports to bring claims pursuant to
42 USC 1983 and various state tort law claims.
2. Defendants admit that claims involving 42 USC 1331 and 1343 confer
jurisdiction to the United States District Cour.
3. Defendants admit that the claims referred to in the Amended Complaint occured
in Multnomah County, Oregon and therefore venue is proper.
Page 1 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT.
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 1 of 9
4. Defendants lack suffcient knowledge or belief as to whether or not at all times
relevant the plaintiff Daniel Collns resided in Multnomah County, Oregon and therefore at this
time that allegation is denied. Defendants admit that the events surounding the fighting at the
Baracuda Bar and Gril at approximately 1 :00 a.m. on 24 December 2010, occured in
Multnomah County, Oregon.
5. Defendants admit paragraph 5 of the Amended Complaint.
6. Defendant City and defendant Darell Shaw admit paragraph 6 of the Amended
Complaint.
7. Defendant City and defendant Matthew Delenikos admit paragraph 7 of the
Amended Complaint.
8. Defendant City and defendant Greg Bum admit paragraph 8 of the Amended
Complaint.
9. Defendant City and defendant David Abrahamson admit paragraph 9 of the
Amended Complaint.
10. Defendants admit paragraph 10 of the Amended Complaint.
11. Defendants admit that on 24 December 2010 at approximately 1 a.m. members of
the Portland Police Bureau were called to the Baracuda Bar & Grill at 9 NW Bumside, Portland,
Oregon, in response to a large violent fight involving individuals inside the packed nightclub that
involved approximately 20 male individuals who were assaulting each other and employees of
the Barracuda Bar & GrilL. Some of the individuals were transported, via ambulance, to the
trauma hospital at Oregon Health & Sciences University. Defendants admit that Portland Police
Bureau Officers Darell Shaw, Gregory Bum, Matthew Delenikos and David Abrahamson
responded to the fight and did so in their official capacity as police officers. All other allegations
contained in paragraph 11 of the Amended Complaint are denied.
12. Defendants deny paragraph 12 of the Amended Complaint.
Page 2 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 2 of 9
13. Defendants admit that at approximately 1:00 a.m. on 24 December 2010, plaintiff
Daniel Collns was in the Barracuda Bar & Grill at the time defendants were aresting Tremaine
Chanel, a person that had ilegally assaulted an employee of the night club. Plaintiff interfered
with the police and engaged in threatening behavior as officers were in the process of taking
Tremaine Chanel into custody to reduce the violent fight and restore order to end fuher
injuries. During the incident, plaintiff was taken to the ground and given legal orders to show his
hands. Defendants fuher admit that after plaintiff was restrained it was leared that plaintiff did
not possess a weapon on his person. All other allegations contained in paragraph 13 of the
Amended Complaint are denied.
14. Defendant City admits that a struggle ensued with plaintiff who resisted officers
and struggled to prevent them from placing him in handcuffs. All other allegations in paragraph
14 of the Amended Complaint are denied.
15. Defendant City and defendant Offcer Bum admit that there was a struggle with
plaintiff who refused to show his hands by hiding them under his body. Plaintiff then engaged in
threatening behavior and resisted arest. Defendant Bum used his knee to give strikes to
plaintiff s buttocks and lower back area in an effort to control him as he was kicking at the
Offcers. All other allegations contained in paragraph 15 of the Amended Complaint are denied.
16. Defendant City and defendant Offcer Delenikos admit that when plaintiff Collns
was fighting with police offcers, hiding his hand(s) and otherwise resisting arest, Offcer
Delenikos used his taser in touch mode on plaintiff which can cause pain. All other allegations
contained in paragraph 16 of the Amended Complaint are denied.
17. Defendants deny paragraph 17 of the Amended Complaint.
18. Defendants admit that after fighting with the police plaintiff Collns was
transported to Oregon Health & Sciences HospitaL. At this time defendants are unaware of what
if any, care or treatment plaintiff received and therefore lack knowledge or information suffcient
Page 3 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-389
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 3 of 9
to form a belief about the truth and therefore deny the same. All other allegations contained in
paragraph 18 are denied.
19. Defendants City, Delenikos and Shaw admit that they contacted plaintiff at OHSU
and issued him an Oregon Uniform Citation and Complaint charging him with Interfering with a
Peace Officer ORS 162.247 and Resisting Arest ORS 162.315. Defendants deny all other
allegations contained in paragraph 19 of the Amended Complaint.
Defendants admit paragraph 20 of the Amended Complaint.
Defendants incorporate the foregoing paragraphs 1-20 as though fully rewritten
20
21.
herein.
22.
23.
Complaint.
24.
25.
26.
27.
herein.
28.
Defendants deny paragraph 22 of the Amended Complaint.
Defendants deny paragraphs 23A, 23B, 23C, 23D. and 23E of the Amended
Defendants deny paragraph 24 of the Amended Complaint.
Defendants deny paragraph 25 of the Amended Complaint.
Defendants deny paragraph 26 of the Amended Complaint.
Defendants incorporate the foregoing paragraphs 1-26 as though fully rewritten
Defendants admit that plaintiff Collns acted under color of state law to seize and
arest plaintiff Collns. Defendants deny that they acted without probable cause as plaintiff had
committed crimes.
29. Defendants deny paragraph 29 of the Amended Complaint.
30. Defendants deny paragraphs 30A, 30B and 30C.
31. Defendants deny paragraph 31 of the Amended Complaint.
32. Defendants deny paragraph 32 of the Amended Complaint.
33. Defendants deny paragraph 33 of the Amended Complaint.
Page 4 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 4 of 9
herein.
34. Defendants incorporate the foregoing paragraphs 1-33 as though fully rewritten
35. Defendants admit that while dealing with plaintiff, the individual officers were
acting within the course and scope of their employment with the City of Portland. All other
allegations contained in paragraphs 35, 35A, 35B, 35C, 35D and 35E of the Amended Complaint
are denied.
herein.
36. Defendants incorporate the foregoing paragraphs 1-35 as though fully rewritten
37. Defendants admit that while the police officers were dealing with the plaintiff
during the fight at the Barracuda Bar & Grill they were acting within the course and scope of
their employment with the City of Portland. Defendants fuher admit that due to plaintiff
Collns' threatening, angry and ilegal conduct he was taken to the ground, struck in the buttocks
and low back with a knee and tasered. All other allegations contained in paragraph 37 of the
Amended Complaint are denied.
Defendants incorporate the foregoing paragraphs 1-37 as though fully rewritten 38.
herein.
39.
40.
41.
herein.
42.
Defendants deny paragraph 39 of the Amended Complaint.
Defendants deny paragraph 40 of the Amended Complaint.
Defendants incorporate the foregoing paragraphs 1-40 as though fully rewritten
Defendants admit that they have a general duty of care to all citizens. All other
allegations contained in paragraph 42 of the Amended Complaint are denied.
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Page 5 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 5 of 9
43. Defendants admit that peace offces have a general duty to intervene if they
observe an ilegal use of force. In the instance involving plaintiff, Collns' conduct and
involvement in the fight at the Baracuda Bar & Grill, there was no ilegal use of force and hence
no duty to intervene. Defendants deny all other allegations in paragraph 43 of the Amended
Complaint.
44. Defendants deny paragraph 44 of the Amended Complaint.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
45. Plaintiffs Amended Complaint fails to state a claim upon which relief can be
granted.
SECOND AFFIRMATIVE DEFENSE
(Qualified Immunty)
46.. The individually-named Police Offcer defendants who had contact with plaintiff
are entitled to qualified immunity. It was objectively reasonable for the offcers to stop, detain
and arest the plaintiff and to use reasonable force.
THIRD AFFIRMTIVE DEFENSE
(Justification/rivilege)
47. The Portland police officers were justified/privileged to use reasonable physical
force to detain plaintiff.
FOURTH AFFIRMATIVE DEFENSE
(No Constitutional Violation)
48. The actions of defendant officers and their use of force do not constitute a
constitutional violation.
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Page 6 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 6 of 9
FIFTH AFFIRMTIVE DEFENSE
(Reasonable Suspicion/robable Cause)
49. Defendants had reasonable suspicion to initiate contact with the plaintiff and both
reasonable suspicion and probable cause to place plaintiff in handcuffs and detain him.
SIXTH AFFIRMATIVE DEFENSE
(Tort Claim Liability Limit)
50. Plaintiffs state law claims are subject to the conditions, limitations and
immunties contained in Oregon's Tort Claim Act, ORS 30.265, et. seq.
SEVENTH AFFIRMTIVE DEFENSE
(Legitimate Safety Requirement)
51. Any ,actions taken by defendant officers were based upon genuine safety
requirements that are necessary for the safe operation of law enforcement and to act otherwse
would create an undue burden on law enforcement operations.
EIGHTH CLAIM FOR RELIEF
(Bar to Recovery)
52. The negligence of plaintiff constitutes a degree of fault that he is bared from
recovery from any defendant.
NINTH CLAIM FOR RELIEF
(Comparative Fault)
53. Mr. Collns' injuries are attributable to his own conduct in:
a. Failing to obey a lawfl order of a police officer;
b. Resisting arest;
c. Hiding his hand from police offcers;
d. Kicking at police offcers; and
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Page 7 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 7 of 9
e. Violently resisting the efforts of the police to take him into custody and
secure him.
TENTH AFFIRMATIVE DEFENSE
(Statutory Limitation of
Damages)
54. Plaintiff Collns' state law claim(s) are subject to the conditions, limitations and
immunities contained in The Oregon Tort Claims Act ORS 30.265 et seq.
ELEVENTH AFFIRMATIVE DEFENSE
(Good Faith)
55. All the actions taken by City of Portland employees were done in good faith.
TWELFTH AFFIRMATIVE DEFENSE
(Discretionary Immunity)
56. The plaintiffs claims for relief are based upon the defendants alleged
performance of/or failure to exercise or perform discretionary fuctions or duties. Defendants
are immune from liabilty from plaintiffs claims'pursuant to ORS 30.265(3)(c).
THIRTEENTH AFFIRMATIVE DEFENSE
(Misjoinder of
Paries on State Law Claims)
57. The plaintiff improperly, and contrary to law, named individual offcers in the
state law claims contrar to ORS 30.265(2).
FOURTEENTH AFFIRMATIVE DEFENSE
(Equity)
58. The "clean hands rules" of equity bar the individual plaintiff from recovery in this
case.
59. Defendants reserve the right to add additional affrmative defenses as discovery
. reveals additional information.
60. Pursuant to FRCP 38, defendants demand atrial by jur.
Page 8 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-4047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 8 of 9
WHEREFORE, having fully answered plaintiffs Amended Complaint, defendants pray
that plaintiff s Complaint be dismissed and that judgment be entered in their favor and for their
costs and disbursements incured herein, in addition to such other relief as may be justified.
DATED: October 29,2012
Respectfully submitted,
~
James G. Rice, OSB No. 824884
Deputy City Attorney
Telephone: (503)823-4047
Email: J ames.Rice(iportlandoregon. gov
Page 9 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
PORTLAND CITY ATIORNEY'S OFFICE
1221 SW 4TH AVENUE, RM. 430
PORTLAND, OREGON 97204
TELEPHONE: (503) 823-047
FAX: (503) 823-3089
Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 9 of 9