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Kathleen L. Wieneke, Bar #011139

Jacob B. Lee, Bar #030371

STRUCK WIENEKE & LOVE, P.L.C.

3100 West Ray Road, Suite 300

Chandler, Arizona 85226

Telephone: (480) 420-1600

Fax: (480) 420-1699

kwieneke@swlfirm.com

jlee@swlfirm.com

Attorneys for Defendants 

City of Phoenix and Officer Jason Gillespie

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Martha Winkler, a single woman,

Plaintiff,

v.

City Of Phoenix, a public entity, et al.,

Defendants.

NO. CV-15-01786-PHX-PGR

DEFENDANTS’ ANSWER TO 

PLAINTIFF’S SECOND AMENDED 

COMPLAINT (Doc. #12)

For their Answer to Plaintiff’s Second Amended Complaint (“SAC”), Defendants 

City of Phoenix (“City”) and Officer Jason Gillespie (“Officer Gillespie”) (collectively, 

“Defendants”) admit, deny, and allege as follows. Defendants deny each and every, all 

and singular, of the allegations in the SAC that are not hereinafter expressly admitted or 

otherwise pled to.

JURISDICTION & VENUE

1. Paragraph 1 of Plaintiff’s SAC does not state an allegation against 

Defendants and/or calls for a legal conclusion to which no response is required. To the 

extent a response is required, Defendants deny the allegations contained therein.

2. In answering paragraph 2 of Plaintiff’s SAC, Defendants admit only that 

Plaintiff served a Notice of Claim on the City on January 12, 2015, and that such claim is 

deemed denied pursuant to A.R.S. § 12-821.01(E). In so admitting, however, Defendants 

make no admissions regarding the Notice’s compliance with A.R.S. § 12-821.01, or the 

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viability of Plaintiff’s claims, both of which are expressly denied. Defendants 

affirmatively allege that Plaintiff has failed to comply with A.R.S. § 12-821.01 with 

regard to Officer Gillespie.

3. In answering paragraph 3 of Plaintiff’s SAC, Defendants admit that this 

Court has jurisdiction over Plaintiff’s state and federal law claims. In so admitting, 

however, Defendants make no admissions regarding the viability of Plaintiff’s claims, 

which is expressly denied. 

4. In answering paragraph 4 of Plaintiff’s SAC, Defendants admit the 

allegations contained therein. In so admitting, however, Defendants make no admissions 

regarding the viability of Plaintiff’s claims, which is expressly denied.

PARTIES

5. In answering paragraph 5 of Plaintiff’s SAC, Defendants reallege and 

incorporate the allegations in response to paragraphs 1-4 as though fully set forth herein.

6. In answering paragraph 6 of Plaintiff’s SAC, Defendants admit only that 

Officer Gillespie was an employee of the City of Phoenix and an officer in the Phoenix 

Police Department at the time of the incident alleged in Plaintiff’s SAC. Defendants 

affirmatively allege that the City of Phoenix is a municipal corporation organized and 

existing under the laws of the State of Arizona and therefore entitled to all of the 

privileges and immunities granted therein, and that the Phoenix Police Department is an 

agency of the City of Phoenix organized and existing under the laws of the State of 

Arizona. The remaining allegations in Paragraph 6 call for a legal conclusion to which no 

response is required. To the extent a response is required, Defendants deny the same. 

7. Paragraph 7 of Plaintiff’s SAC does not state an allegation against 

Defendants and/or calls for a legal conclusion to which no response is required. To the 

extent a response is required, Defendants deny the allegations contained therein.

/ / /

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FACTUAL BASIS OF CLAIM

Introduction

8. In answering paragraph 8 of Plaintiff’s SAC, Defendants reallege and 

incorporate the allegations in response to paragraphs 1-7 as though fully set forth herein.

9. Paragraph 9 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

Defendants deny the allegations contained therein.

10. Paragraph 10 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

Defendants deny the allegations contained therein.

11. In answering paragraph 11 of Plaintiff’s SAC, Defendants admit only that 

Defendant Gillespie responded to the Circle K at the corner of Bethany Home Road and 

Seventh Street in Phoenix in response to various calls, including Plaintiff’s 911 calls. 

Defendants deny the remaining allegations in Paragraph 11.

12. In answering paragraph 12 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

13. In answering paragraph 13 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

Damages

14. In answering paragraph 14 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

15. Paragraph 15 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

Defendants deny the allegations contained therein. 

16. In answering paragraph 16 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

17. Paragraph 17 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

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Defendants deny the allegations contained therein. 

18. Paragraph 18 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

Defendants deny the allegations contained therein. 

19. Paragraph 19 of Plaintiff’s SAC does not state an allegation against 

Defendants, such that no response is required. To the extent a response is required, 

Defendants deny the allegations contained therein. 

FIRST CLAIM FOR RELIEF

Gross Negligence—City of Phoenix

20. In answering paragraph 20 of Plaintiff’s SAC, Defendants reallege and 

incorporate the allegations in response to paragraphs 1-19 as though fully set forth herein.

21. In answering paragraph 21 of Plaintiff’s SAC, Defendants admit only that 

Officer Gillespie was an employee of the City of Phoenix at the time of the incident 

alleged in Plaintiff’s SAC. Defendants deny the remaining allegations in Paragraph 21.

22. In answering paragraph 22 of Plaintiff’s SAC, Defendants admit only that 

Officer Gillespie was an employee of the City of Phoenix at the time of the incident 

alleged in Plaintiff’s SAC. Defendants deny the remaining allegations in Paragraph 22.

FOURTH CLAIM FOR RELIEF1

Officer Gillespie Violated Ms. Castillo's [sic] Rights under the Fourth Amendment 

and 42 U.S.C. § 1983 to be Free from the Unreasonable Use of Force

37. In answering paragraph 37 of Plaintiff’s SAC, Defendants reallege and 

incorporate the allegations in response to paragraphs 1-22 as though fully set forth herein.

38. In answering paragraph 38 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

39. In answering paragraph 39 of Plaintiff’s SAC, Defendants deny the 

 1 Defendants filed a Motion to Dismiss the Second and Third Claims for Relief 

concurrently with this Answer. 

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allegations contained therein.

40. In answering paragraph 40 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

41. In answering paragraph 41 of Plaintiff’s SAC, Defendants deny the 

allegations contained therein.

JURY TRIAL

42. Defendants also request a trial by jury.

PRAYER FOR RELIEF

Defendants deny that Plaintiff is entitled to any and all relief requested in

Plaintiff’s Request for Relief.

AFFIRMATIVE DEFENSES

Defendants set forth the following defenses as separate and alternative defenses to 

Plaintiff’s Second Amended Complaint (“SAC”). Some of the defenses outlined below are 

true affirmative defenses (on which Defendants would bear the burden of proof). Other 

defenses are outlined for the purpose of placing Plaintiff on notice of the legal defenses 

Defendants will assert for the purpose of allowing Plaintiff to fully evaluate her claims, as 

this relates to any future request by Defendants for attorneys’ fees for any claim that is 

subject to dismissal by the Court:

1. Plaintiff’s SAC, in whole or in part, fails to state a claim upon which relief 

can be granted. 

2. Plaintiff failed to comply with A.R.S. § 12-821.01, the Notice of Claim 

statute, specifically as it relates to service on Officer Gillespie, such that Plaintiff is 

precluded from alleging any state law claims against Officer Gillespie in his capacity as a 

Phoenix Police Officer.

3. Plaintiff may have failed to comply with A.R.S. § 12-821.01, the Notice of 

Claim statute, specifically as it relates to the facts supporting the damages claims. 

Whether or not Plaintiff possessed additional facts that should have been included will 

only be determined through the discovery process. 

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4. Plaintiff has failed to comply with A.R.S. § 12-821.01, the Notice of Claim 

statute, with regard to any fictitious or “unidentified individuals” referenced in the SAC, 

such that Plaintiff is precluded from alleging any state law claims against such individuals 

in their capacities as City employees.

5. Defendants are entitled to all privileges and immunities afforded to 

governmental employees and/or entities under state and federal law, including, but not 

limited to, those privileges and immunities provided in A.R.S. § 12-820, et seq. and 

qualified immunity as defined in Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled on 

other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

6. At all times set forth in the SAC, Defendants were acting reasonably, in 

good faith, without malice, and based upon probable cause and/or reasonable suspicion.

7. There existed no conduct by Defendants that was driven by evil motive or 

intent, nor conduct that was reckless or callously indifferent to Plaintiff’s constitutional 

rights, thereby precluding recovery of punitive or exemplary damages.

8. Defendants are not liable to Plaintiff for punitive damages pursuant to 

A.R.S. § 12-820.04.

9. At all times set forth in the SAC, Defendants’ actions were objectively 

reasonable under the totality of the circumstances then existing.

10. Plaintiff was solely or comparatively at fault for the injuries and damages 

alleged in the SAC, thereby barring or reducing any recovery herein by way of 

comparative negligence. This fault includes, but is not limited to, Plaintiff’s attempts to 

pull away from Officer Gillespie and otherwise resist arrest in a busy parking lot.

11. The actions or inactions alleged on the part of Defendants were not the 

proximate cause of any injuries, losses, and/or damages to Plaintiff, thereby barring 

recovery herein or reducing Plaintiff’s recovery in proportion to the fault assessed against 

Plaintiff and/or any third parties who may be all or partially at fault.

12. Plaintiff’s alleged injuries, if any, were proximately caused by an 

independent intervening/superseding cause for which Defendants are not liable.

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13. Plaintiff’s injuries, if any, were caused by a third party over whom 

Defendants had no control.

14. Plaintiff’s injuries, losses, and damages, if any, were the result of the 

negligence or intentional act of someone other than Defendants, thereby reducing or 

eliminating any damages owed by Defendants.

15. Plaintiff may have failed to mitigate her damages, thus barring or reducing 

the recovery against Defendants. 

16. Plaintiff’s claimed injuries are the result of a pre-existing condition(s), 

thereby eliminating any damages owed by Defendants.

17. Plaintiff assumed the risk of injury, and was negligent per se, by knowingly 

remaining unlawfully in or on the Circle K property after being asked to leave. See A.R.S. 

§ 13-1503(A).

18. Plaintiff assumed the risk of injury, and was negligent per se, by

intentionally attempting to prevent Officer Gillespie, who Plaintiff knew to be a peace 

officer acting under color of his authority as such, from effecting her arrest by using or 

threatening to use physical force, using any other means to create substantial risk of 

causing physical injury, and/or passive resistance. See A.R.S. § 13-2508(A).

19. Plaintiff assumed the risk of injury, and was negligent per se, by contacting 

or communicating with Circle K customers by verbal means in a manner that harasses and 

with intent to harass or knowledge that she was harassing such persons. See A.R.S. § 13-

2921(A).

20. Plaintiff assumed the risk of injury, and was negligent per se, by failing or 

refusing to state her true full name on request of Officer Gillespie, a peace officer who 

had lawfully detained her based on reasonable suspicion that she had committed a crime. 

See A.R.S. § 13-2412.

21. Under the circumstances, Officer Gillespie had probable cause to arrest 

Plaintiff for violation of A.R.S. § 13-1502(A) (third-degree trespass); A.R.S. § 13-

1503(A) (second-degree trespass); A.R.S. § 13-2508(A) (resisting arrest); A.R.S. § 13-

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2921(A) (harassment); and/or A.R.S. § 13-2412(A) (refusing to provide truthful name 

when lawfully detained).

22. Plaintiff is currently being prosecuted for violation of A.R.S. § 13-1502(A) 

(third-degree trespass). To the extent she is convicted, Plaintiff’s unlawful seizure claim is 

barred by Heck v. Humphrey, 512 U.S. 477 (1994).

23. Officer Gillespie’s use of force in effecting Plaintiff’s arrest was justifiable 

and not criminal or wrongful pursuant to A.R.S. § 13-403(4).

24. Plaintiff’s use of physical force in resisting arrest was not justified pursuant 

to A.R.S. § 13-404(B).

25. Officer Gillespie’s use of force in effecting Plaintiff’s arrest was justified 

pursuant to A.R.S. § 13-409.

26. Defendants are not liable for Plaintiff’s injuries pursuant to A.R.S. § 12-711.

27. Defendants are not liable for Plaintiff’s injuries pursuant to A.R.S. § 12-

712(B).

28. Plaintiffs may not assert a simple negligence claim against Defendant under 

Landeros v. City of Tucson, 171 Ariz. 474 (App. 1992), as Defendants are entitled to 

qualified immunity for arrest-related activities pursuant to A.R.S. § 12-820.02(A)(1), 

which requires a showing of gross negligence or intent to cause injury to Plaintiff.

29. Neither Defendants’ actions nor inactions violated Plaintiff’s constitutional 

rights or Plaintiff’s rights under federal or state law.

30. Plaintiff cannot establish the requisite showing of subjective intent 

necessary to sustain a cause of action alleging a constitutional violation, thereby 

warranting dismissal of this lawsuit.

31. Defendants put Plaintiff on notice that further affirmative defenses may be 

added in an amended answer after discovery. These defenses may include any defense set 

forth in Rule 8(d) and/or Rule 12(b) of the Federal Rules of Civil Procedure or as 

otherwise allowed by law.

32. Defendants demand a jury trial.

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WHEREFORE, Defendants respectfully request that:

A. Plaintiff’s Second Amended Complaint be dismissed with prejudice, and 

that Plaintiff take nothing therein;

B. Defendants be awarded their costs, expenses, and attorney fees pursuant to 

A.R.S. § 13-420 and 42 U.S.C. § 1988; and

C. Defendants be awarded such other and further relief as this Court deems just 

and equitable.

DATED this 4th day of December 2015.

STRUCK WIENEKE & LOVE, P.L.C.

By /s/ Jacob B. Lee

Kathleen L. Wieneke

Jacob B. Lee

Struck Wieneke & Love, P.L.C.

3100 West Ray Road, Suite 300

Chandler, Arizona 85226 Attorneys for Defendants City of Phoenix and Officer Jason Gillespie

CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2015, I electronically transmitted the attached 

document to the Clerk's Office using the CM/ECF System for filing and transmittal of a

Notice of Electronic Filing to the following CM/ECF registrants:

Jocquese L. Blackwell

BLACKWELL LAW OFFICE

111 West Monroe St., Suite 1216

Phoenix, AZ 85003

Attorney for Plaintiff

I hereby certify that on this same date, I served the attached document by U.S. 

Mail, postage prepaid, on the following, who is not a registered participant of the 

CM/ECF System:

N/A

/s/ Jacob B. Lee

Case 2:15-cv-01786-DLR Document 17 Filed 12/04/15 Page 9 of 9