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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENESSA WESTBROOK, APRIL

WESTBROOK, and MARTIN WESTBROOK,

Plaintiffs, USDC Case No. 09-11457

Hon. Nancy G. Edmunds

vs. Mag. R. Steven Whalen 

LARRY DAVIS, JOSEPH WEEKLEY,

JASON BRASGALLA, KEVIN SHEPHARD, 

G. CHESTER, D. FOSTER, C. ANDERSON, 

T. DOLLINGER, S. HOWITT, and E. HAYES, 

Defendants.

____________________________________________________________________

CHRISTOPHER J. TRAINOR (P-42449) JERRY L. ASHFORD (P-47402)

SHAWN C. CABO T (P-64021) Attorney for Defendants Davis, Weekley

CHRISTOPHER TRAINOR & ASSOC Howitt, Dollinger, Hayes,Chester 

Attorneys for Plaintiffs Anderson, and Brasgalla only

9750 Highland Road City of Detroit Law Department

White Lake, Michigan 48386 660 Woodward Avenue

(248) 886-8650 1650 First National Building

Detroit, Michigan 48226

(313) 237-3089

_____________________________________________________________________

DEFENDANTS LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH

HAYES, WILLIAM HOWITT, COURTNEY ANDERSON, GEORGE

CHESTER, JASON BRAGALA, AND TIM DOLLINGER’S ANSWER

TO COMPLAINT, AFFIRMATIVE DEFENSES, DEMAND FOR REPLY

TO AFFIRMATIVE DEFENSES, JURY DEMAND, DEMAND FOR

COMPULSORY JOINDER AND ELIJAH HAYES, WILLIAM HOWITT,

COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA,

AND TIM DOLLINGER’S JOINDER IN REMOVAL

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Defendants, LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER, by their counsel (who pursuant to Section 13-11-1 of the Detroit City Code,

reserves the right to withdraw as counsel for the individually named defendant in the event

his/her representation request is not approved by the Detroit City Council), answer

Plaintiffs’ Complaint as follows:

1. Defendant denies the allegations of paragraphs 11, 13, 14, 18-22, 24-29, 32-

36, 38-41, 45-48, 54-56, 63-66, and 69 of Plaintiff's Complaint.

2. Defendant denies having sufficient knowledge or information upon which to

form a belief regarding the allegations of Paragraphs 1-4, 6-10, 12, 15, 16,

31, 42, 44, 51, 53, 58, 68, and 70 of Plaintiff's Complaint and leave Plaintiffs

to their proofs.

3. The allegations of paragraphs 50, 52, and 59-62 constitute conclusions of

law which do not require a response.

4. The assertions of paragraphs 5, 17, 23, 30, 37, 43, 49, 57, and 67 do not

require a response because these paragraphs are used by Plaintiffs for

incorporation by reference or requests for relief.

5. Defendants admit nothing.

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WHEREFORE, Defendants, LARRY DAVIS, JOSEPHWEEKLEY,ELIJAH HAYES,

WILLIAM HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA,

AND TIM DOLLINGER, respectfully demand dismissal of the Plaintiff's claims or judgment

of no cause of action on those claims, together with attorney fees and costs wrongfully

incurred.

Respectfully submitted,

CITY OF DETROIT LAW DEPARTMENT

S/ Jerry L. Ashford

________________________

JERRY L. ASHFORD (P-47402)

1650 First National Building

Detroit, Michigan 48224

(313) 237-3089

ashfj@detroitmi.gov

Dated: April 21, 2009 

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AFFIRMATIVE AND SPECIAL DEFENSES

Defendants, LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER, by their counsel, state the following as their following affirmative defenses:

FIRST DEFENSE

The plaintiff has failed to state a claim against defendants upon which relief can be

granted.

SECOND DEFENSE

Any injury suffered by plaintiff was proximately caused by his/her own negligence

and other wrongdoing, including serious wrongdoing that gives rise to the wrongfulconduct defense as well as the comparative negligence defense.

THIRD DEFENSE

The arrest, imprisonment, and prosecution of the plaintiff, if any, was supported by

probable cause. 

FOURTH DEFENSE

To the extent, if any, that the police officers or anyone acting at the direction of or

in concert with the police officers used force against the plaintiff, each such person acted

in self defense and/or defense of others.

FIFTH DEFENSE

To the extent, if any, that the police officers or anyone acting at the direction of or

in concert with the police officers used force against the plaintiff, each such use of force

was privileged and lawful because the force was reasonably applied in the execution of

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a lawful arrest or in the lawful performance of other police duties.

SIXTH DEFENSE

The applicable statutes of limitation lapsed prior to the filing of Plaintiff’s Complaint

with respect to some or all of Plaintiff’s claims.

SEVENTH DEFENSE

Plaintiff failed to mitigate his damages.

EIGHTH DEFENSE

Plaintiff has failed to join every legal and equitable claim arising from the incident

central to the lawsuit.

NINTH DEFENSE

Vicarious/Respondeat Superior Liability is not available as a theory of liability. 

TENTH DEFENSE

The Defendant City of Detroit’s use of force, or fatal force, police policies have

been found to conform to the constitutional requirements set forth in Garner v

Tennessee, 471 US 1 (1985). See Berry v McLemore, 25 F3d 1342 (CA 6, 1994);

Pleasant v Zamieski, 895 F2d 272, cert denied, 498 US 851 (CA 6, 1990).

ELEVENTH DEFENSE

There was no state action involved in the incident alleged in Plaintiff’s Complaint 

(The police officers did not act under color of law).

TWELFTH DEFENSE 

Defendants’conduct was not outrageous, extreme, or outside the limits of decency

and did not cause emotional harm. 

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THIRTEENTH DEFENSE

Defendants’ alleged destruction of property while under attack was undertaken

without malice, but in self-defense and/or defense of others. Further, the destruction was

reasonably necessary to effectively execute the arrest/search warrant. 

FOURTEENTH AMENDMENT

Defendants’ conduct was lawful, reasonable, and authorized and done in

accordance with an arrest/search warrant. 

FIFTEENTH AMENDMENT

Defendants acted in an objectively reasonable manner in carrying out their law

enforcement duties and, therefore, are shielded by qualified immunity. In no way did

Defendants ever act recklessly, maliciously, or with intent to harm or injure Plaintiff.

SIXTEENTH

Plaintiff did not suffer a constitutional deprivation of a clearly established right.

RESERVATION OF ADDITIONAL DEFENSES

Defendants LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER, in the above captioned matter, by and through counsel, reserve the right to

assert and file any affirmative and special defense which may become known by research,

investigation, discovery proceedings in accordance with the rules and practices of this

Court or otherwise. Further, Defendants do not waive any deficiency or omission in any

pleadings filed by any other party to this suit regardless of when filed.

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WHEREFORE, Defendants, LARRY DAVIS, JOSEPHWEEKLEY,ELIJAH HAYES,

WILLIAM HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA,

AND TIM DOLLINGER, respectfully demand dismissal of the Plaintiff's claims or judgment

of no cause of action on those claims, together with attorney fees and costs wrongfully

incurred.

Respectfully submitted,

CITY OF DETROIT LAW DEPARTMENT

S/ Jerry L. Ashford

________________________

JERRY L. ASHFORD (P-47402)

1650 First National Building

Detroit, Michigan 48224

(313) 237-3089 

ashfj@detroitmi.gov

Dated: April 21, 2009

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DEMAND FOR COMPULSORY JOINDER OF CLAIMS

Defendants LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER demand Plaintiff join in this action all claims Plaintiff may have against any

Defendants arising from the subject matter of this action and which do not require for

adjudication the presence of third parties over whom the court cannot exercise jurisdiction.

Respectfully submitted,

CITY OF DETROIT LAW DEPARTMENT

S/ Jerry L. Ashford

__________________________

JERRY L. ASHFORD (P-47402)

1650 First National Building

Detroit, Michigan 48224

(313) 237-3089 

ashfj@detroitmi.gov

April 21, 2009

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DEMAND FOR REPLY TO AFFIRMATIVE DEFENSES

Defendants demand a reply to each and every Affirmative Defense set forth herein.

Respectfully submitted,

CITY OF DETROIT LAW DEPARTMENT 

S/ Jerry L. Ashford

 

Jerry L. Ashford (P-47402)

1650 First National Building

Detroit, MI 48226 

(313) 237-3089

ashfj@detroitmi.gov

DATED: April 21, 2009

JURY DEMAND

Defendants LARRY DAVIS, JOSEPH WEEKLEY, ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER requests a jury trial in this cause of action. Defendants reserve the right to

withdraw their Jury Demand at any time prior to trial.

Respectfully submitted,

CITY OF DETROIT LAW DEPARTMENT

S/ Jerry L. Ashford

_________________________

JERRY L. ASHFORD (P-47402)

1650 First National Building

Detroit, Michigan 48224

(313) 237-3089 

ashfj@detroitmi.gov

Dated: April 21, 2009

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APPEARANCE AND JOINDER IN REMOVAL ON BEHALF OF

DEFENDANTS ELIJAH HAYES, WILLIAM HOWITT, COURTNEY

ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM DOLLINGER

The undersigned appears as counsel for Defendants ELIJAH HAYES, WILLIAM

HOWITT, COURTNEY ANDERSON, GEORGE CHESTER, JASON BRAGALA, AND TIM

DOLLINGER. The copy of the Complaint that was served on Defendants Larry Davis and

Joseph Weekley and attached to the Notice of Removal of Civil action is the same as the

copy of the Complaint served on Defendants Hayes, Howitt, Anderson, Chester, Bragala,

and Dollinger

Defendants ELIJAH HAYES, WILLIAM HOWITT, COURTNEY ANDERSON,

GEORGE CHESTER, JASON BRAGALA, AND TIM DOLLINGER hereby concur and join

in the previously filed Notice of Removal of Civil Action.

Respectfully submitted, 

CITY OF DETROIT LAW DEPARTMENT

S/ Jerry L. Ashford

______________________________

Jerry L. Ashford (P-47402)

1650 First National Building

Detroit, MI 48226

(313) 237-3089

Dated: April 21, 2009 ashfj@detroitmi.gov

I hereby certify that on April 21, 2009, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system which will send notification of such filing to

Christopher J. Trainor, Esq. 

S/ Jerry L. Ashford (P-47402)

City of Detroit Law Department

660 Woodward Ave. - Suite 1650

Detroit, Michigan 48226

(313) 237-3089

ashfj@detroitmi.gov

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