HCDE Responds To 2nd Federal Lawsuit

T16-0151
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
RICHARD ROE, A MINOR STUDENT, BY AND

THROUGH HIS PARENTS AND NEXT FRIENDS,
RICHARD ROE, SR., AND JANE ROE,
PLAINTIFFS
V.
HAMILTON COUNTY DEPARTMENT OF
EDUCATION, d/b/a HAMILTON COUNTY SCHOOLS;
ANDRE MONTGOMERY, INDIVIDUALLY; JESSE
NAYADLEY, INDIVIDUALLY; JAMES JARVIS,
INDIVIDUALLY; AND MARSHA DRAKE, INDIVIDUALLY
DEFENDANTS.
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No. 1:16-cv-00497
JURY DEMAND
ANSWER ON BEHALF OF DEFENDANT MARSHA DRAKE
Now comes the Defendant, Marsha Drake, and responds to the Complaint as
follows:
FIRST DEFENSE
The Plaintiffs have failed to state a claim upon which relief can be granted as to
this Defendant and dismissal of same is hereby sought pursuant to F.R.C.P. 12.
SECOND DEFENSE
This Defendant responds to the enumerated paragraphs of the Complaint as
follows:
Complaint
Paragraph
1.
Response
Denied as to this Defendant.

1
Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 1 of 17 PageID #: 95
2.
Denied on the grounds that this Defendant is without sufficient information or

knowledge to form a belief as to the truth of the averments set forth herein
and strict proof of same is hereby demanded.
3.
Admitted.
4.

5.
It is admitted that Defendant Montgomery was the former head coach of

Ooltewah High School (OHS). All remaining allegations inconsistent with the
foregoing are denied.
6.
It is admitted that Defendant Nayadley was the former Athletic Director and
Assistant Principal of OHS. All remaining allegations inconsistent with the
foregoing are denied.
7.
It is admitted that Defendant Jarvis was the former Principal of OHS. All
remaining allegations inconsistent with the foregoing are denied.
8.
It is admitted that Defendant Drake was the Title IX coordinator.
All
remaining allegations inconsistent with the foregoing are denied.

9.
It is admitted that this Honorable Court has jurisdiction over this matter. It is
denied that this Court has supplemental jurisdiction over any and all state law
claims asserted by the Plaintiff. All remaining allegations are denied.
10.

11.
It is admitted that HCDOE receives federal funding. All legal conclusions are
neither admitted nor denied and strict proof is demanded.
12.
The allegations contained in this paragraph are directed at someone other

than this Defendant; therefore strict proof is demanded.
13.
Denied to the extent that this paragraph seeks to impose a duty as to the
HCDOE not recognized under applicable law.
All remaining allegations
inconsistent with the foregoing are denied.

14.
The allegations in paragraph 14 are admitted with the exception of the

footnote.
The footnote is neither admitted nor denied and strict proof is
demanded.
15.
Denied.
16.

17.

18.

19.

20.

21.
Denied on the grounds that the allegations contained in this specifically

numbered paragraph are directed at someone other than this Defendant;
therefore strict proof is demanded.
22.

23.
It is admitted that the OHS boys basketball team attended the Smokey
Mountains Christmas Classic in Gatlinburg, Tennessee.
All remaining
allegations are denied on the grounds that the allegations contained in this
specifically numbered paragraph are directed at someone other than this
Defendant; therefore strict proof is demanded.
24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.
It is admitted that the Board of Education is unaware of hazing or violence

regarding the OHS girls athletic programs.
All remaining allegations

35.

36.
Upon information and belief, admitted.
37.
It should be noted that the allegations contained in this paragraph do not

relate to the Plaintiff. All remaining allegations are denied on grounds that
this Defendant is without sufficient information or knowledge to either admit
or deny the allegations and strict proof of same is hereby demanded.
38.
Denied on grounds that this Defendant is without sufficient information or

knowledge to either admit or deny the allegations and strict proof of same is
hereby demanded.
39.

40.
Upon information and belief, the first grammatical sentence is admitted. All
remaining allegations are denied on grounds that this Defendant is without
sufficient information or knowledge to either admit or deny the allegations
41.

hereby demanded.
42.
It should be noted that the allegations contained in this paragraph do not

relate to the Plaintiff.
Denied on grounds that this Defendant is without
sufficient information or knowledge to either admit or deny the allegations

43.

hereby demanded.
44.

hereby demanded.
45.
Presently without information or knowledge to admit or deny the allegations.
46.

therefore strict proof is demanded. The last grammatical sentence is denied.
47.

hereby demanded.
48.
49.
It is admitted that HCDE hired attorney Courtney Bullard to perform an

investigation. All remaining allegations are denied.
50.
It is admitted that Attorney Courtney Bullard was retained by the Board of

Education. It is admitted that she set forth her opinions in the August 4, 2016
report. All remaining allegations inconsistent with the foregoing are denied.
51.
The first grammatical sentence is denied on the grounds that the allegations
contained in this specifically numbered paragraph are directed at someone
other than this Defendant; therefore strict proof is demanded. It is admitted
that Courtney Bullard set forth her opinions in the August 4, 2016 report. All
allegations inconsistent with the foregoing are denied.
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52.
It is admitted that the report of District Attorney General dated September 19,
2016 set forth his opinions. All allegations inconsistent with the foregoing are
denied.
53.
Denied.
54.
The first three grammatical sentences are denied on grounds that the
allegations are directed at someone other than this Defendant; therefore
strict proof is demanded. All remaining allegations are denied.
55.
56.
contained in this sentence are directed at someone other than this
Defendant; therefore strict proof is demanded. All remaining allegations are
denied as to this Defendant.
57.
The first grammatical sentence is denied. It is admitted that Courtney Bullard

set forth her opinions in the August 4, 2016 report.
All allegations

58.
Denied.
59.
The first grammatical sentence is denied on the grounds that it is

unintelligible. All remaining allegations are denied.
60.
The first grammatical sentence is denied. It is admitted that the report of

District Attorney General dated September 19, 2016 set forth his opinions.
All allegations inconsistent with the foregoing are denied.
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61.
Denied.
62.
contained in this sentence are directed at someone other than this
Defendant; therefore strict proof is demanded. All remaining allegations are
denied as to this Defendant.
63.
The first grammatical sentence is denied. The last grammatical sentence is

denied on grounds that this Defendant is without sufficient information or
hereby demanded.
64.
It is admitted that Courtney Bullard was retained by the HCDOE to do an

investigation. All allegations inconsistent with the foregoing are denied.
65.

hereby demanded.
66.
The first grammatical sentence is denied. It is admitted that Courtney Bullard

set forth her opinions in the August 4, 2016 report. All remaining allegations
are denied.
67.
It is admitted that this Defendant is not liable to the Plaintiffs under any theory
of law. All remaining allegations are denied.
68.
It is admitted that Case No. 1:16-CV-00373 is currently assigned to Judge

Travis. It is denied that Judge Travis has heard any proof in that matter to
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date. All remaining allegation in sentence one are admitted. The remaining
allegations are denied.
69.

70.
Denied.
71.
Denied that this Defendant is liable to the Plaintiffs under any theory of law.
72.
This Defendant would incorporate by reference its previous responses to

paragraphs 1-71.
73.
The first grammatical sentence is denied on grounds that this Defendant is

without sufficient information or knowledge to either admit or deny the
allegations and strict proof of same is hereby demanded.
All remaining
allegations are denied.

74.
This Defendant would incorporate by reference her previous responses to

paragraphs 1-73.
75.
76.
77.

paragraphs 1-76.
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78.
Denied to the extent that this paragraph would impose a duty not recognized
by law. All remaining allegations inconsistent with the foregoing are denied.
79.
Denied to the extent that this paragraph would impose a duty not recognized
by law. All remaining allegations inconsistent with the foregoing are denied.
80.
81.
82.
Denied.
83.

paragraphs 1-82.
84.
It is admitted that this Defendant was an employee of the HCDE.
All
remaining allegations are denied as to this Defendant.

85.

86.
This Defendant would incorporate by reference its previous responses to

paragraphs 1-85.
87.
All remaining allegations inconsistent with the foregoing are denied.
88.
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89.
GENERAL DENIAL
This Defendant would deny that the Plaintiffs are entitled to any recover under
any theory of law and all allegations in the Complaint not heretofore admitted, denied or
explained are now expressly denied.
AFFIRMATIVE DEFENSES
1.
This Defendant would rely upon any and all immunities, whether qualified
and/or absolute, and will assert that at all times this Defendant acted as
reasonable and prudent school employee in good faith without deliberate
indifference to Plaintiffs constitutional rights.
2.
That this Defendant would rely upon any and all immunities and defenses
which exists pursuant to Tennessee Code Annotated 29-20-101, et. seq.,
otherwise known as the Tennessee Government and Tort Liability Act.
This Defendant would further rely upon the public duty doctrine, which is
recognized as common law immunity for actions of governmental officials
in the furtherance of the course and scope of their employment.
Therefore, the Plaintiffs may not recover from this Defendant.
3.
That punitive damages may not be awarded against this Defendant on the
grounds under the Tennessee Government and Tort Liability Act.
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4.
This Defendant would deny that there was any deliberate indifference with
regard to the minor Plaintiff by any action whatsoever by this Defendant.
This Defendant would rely upon any defenses available to it under 42
U.S.C. 1983, Title IX, Tennessee Code Annotated 29-20-101 et. seq.
and any and all other federal and state laws.
5.
This Defendant is immune from suit under Title IX.
6.
This Defendant would specifically allege that any injuries or alleged

injuries sustained by the minor Plaintiff were the result of the acts of the
alleged perpetrators, identified in Case No. 1:16-CV-00373 and are the
sole and proximate cause of the alleged injuries sustained by the
Plaintiffs, and therefore the Plaintiffs may not recover from this Defendant.
7.
To the extent that the proof would reveal that the alleged minor
perpetrators described in the Complaint were known to have a propensity
to engage in the acts that are further described in the Complaint and such
knowledge was known by the parents of that child, it is alleged that the
sole and proximate cause of the alleged injuries sustained by the minor
Plaintiff would be the actions of the parents of the minor perpetrators.
8.
Should the proof reveal the same, this Defendant would specifically allege
that any injuries or alleged injuries sustained by the minor Plaintiff were
the result of the acts of any additional perpetrators of the alleged incidents
presently unknown to this Defendant and are the sole and proximate
14
cause of the alleged injuries sustained by the Plaintiffs, and therefore the
Plaintiffs may not recover from this Defendant.
9.
Should the proof reveal the same, this Defendant would specifically allege
that any injuries or alleged injuries sustained by the minor Plaintiff were
the result of the acts of the minor Plaintiff and are the sole and proximate
cause of the alleged injuries sustained by the Plaintiffs, and therefore the
Plaintiffs may not recover from this Defendant.
10.
The Plaintiffs have no legally cognizable action against this Defendant

under the Tennessee Governmental Tort Liability Act.
11.
The Plaintiffs have filed state causes of actions for which this Court has no
supplemental jurisdiction.
12.
Should the Court determine to exercise supplemental jurisdiction, this

Defendant would rely upon the doctrine of modified comparative fault to
proportionately reduce any award of damages against this Defendant by
the fault apportioned to any K.J., J.B., and J.N., identified in Case No.
1:16-CV-00373, and any other third party not presently know to this
Defendant.
13.
Should the proof reveal the same, Plaintiffs claims are barred by the
statute of limitations.
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Having responded to the Complaint, this Defendant seeks dismissal of this

cause or, in the alternative, for Judgment for this Defendant with costs to be
assessed against the Plaintiffs for which execution may issue if necessary.
RESPECTFULLY SUBMITTED,
This the 25th day of January, 2017.
Respectfully submitted,
PURCELL, SELLERS & CRAIG, INC.
By:
s/Charles M. Purcell __________

Charles M. Purcell (012461)
Attorneys for Defendant
P.O. Box 10547
Jackson, Tennessee 38308
(731) 300-0737
Chuck@psclegal.com
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document was forwarded
by electronic means via the Courts electronic filing system.
s/Charles M. Purcell
Date:
January 25, 2017
PERSONS SERVED:
Justin S. Gilbert
Gilbert Russell McWherter Scott Bobbitt PLC
100 W. Martin Luther King Blvd., Suite 504
Chattanooga, TN 37402
jgilbert@gilbertfirm.com
Eric J. Oliver
Lewis & Oliver
100 W. Martin Luther King Blvd., Suite 501
Chattanooga, TN 37402
eoliver@lewisoliver.com
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HCDE Responds To 2nd Federal Lawsuit

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T16-0151

IN THE UNITED STATES DISTRICT COURT

RICHARD ROE, A MINOR STUDENT, BY AND

ANSWER ON BEHALF OF DEFENDANT MARSHA DRAKE

Denied as to this Defendant.

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 1 of 17 PageID #: 95

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

It is admitted that Defendant Montgomery was the former head coach of

It is admitted that Defendant Drake was the Title IX coordinator.

remaining allegations inconsistent with the foregoing are denied.

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 2 of 17 PageID #: 96

Denied on the grounds that this Defendant is without sufficient information or

The allegations contained in this paragraph are directed at someone other

All remaining allegations

inconsistent with the foregoing are denied.

The allegations in paragraph 14 are admitted with the exception of the

The footnote is neither admitted nor denied and strict proof is

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 3 of 17 PageID #: 97

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that the allegations contained in this specifically

Denied on the grounds that this Defendant is without sufficient information or

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 4 of 17 PageID #: 98

Denied on the grounds that the allegations contained in this specifically

Denied on the grounds that the allegations contained in this specifically

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 5 of 17 PageID #: 99

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

Denied on the grounds that this Defendant is without sufficient information or

It is admitted that the Board of Education is unaware of hazing or violence

All remaining allegations

inconsistent with the foregoing are denied.

Denied on the grounds that this Defendant is without sufficient information or

Upon information and belief, admitted.

It should be noted that the allegations contained in this paragraph do not

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 6 of 17 PageID #: 100

Denied on grounds that this Defendant is without sufficient information or

Denied on the grounds that the allegations contained in this specifically

Denied on grounds that this Defendant is without sufficient information or

It should be noted that the allegations contained in this paragraph do not

Denied on grounds that this Defendant is without

sufficient information or knowledge to either admit or deny the allegations

Denied on grounds that this Defendant is without sufficient information or

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 7 of 17 PageID #: 101

Denied on grounds that this Defendant is without sufficient information or

Presently without information or knowledge to admit or deny the allegations.

Denied on the grounds that the allegations contained in this specifically

Denied on grounds that this Defendant is without sufficient information or

Denied as to this Defendant.

It is admitted that HCDE hired attorney Courtney Bullard to perform an

It is admitted that Attorney Courtney Bullard was retained by the Board of

Case 1:16-cv-00497-TRM-CHS Document 13 Filed 01/25/17 Page 8 of 17 PageID #: 102

Denied as to this Defendant.

The first grammatical sentence is denied. It is admitted that Courtney Bullard