Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 1 of 14

Maureen H. Lennon
Mitchell A. Young
County Litigation Group
2715 Skyway Drive
PO Box 6697
Helena, MT 59604-6697
Ph. (406) 441-5471
mlennon@mtcounties.org
myoung@mtcounties.org
Counsel for County Defendants

IN THE UNITED STATES DISTRICT COURT

)
TANNER WHITE, ) Case No.: CV 22-141
)
Plaintiff, )
) COUNTY DEFENDANTS’
v. ) ANSWER TO COMPLAINT AND
) DEMAND FOR JURY TRIAL
FLATHEAD COUNTY, SAM )
COX, and JOHN DOES 1-10, )
)
Defendants. )

Defendants Flathead County and Sam Cox (County Defendants) through

their counsel of record, for their answer to Plaintiff’s Complaint, admit, deny, and

allege as follows:

INTRODUCTION

1. Answering Paragraph 1, this introductory paragraph is a summary of

Plaintiff’s claims which requires no response.

JURISDICTION AND VENUE

2. Answering Paragraph 2, County Defendants admit the Court has

subject matter jurisdiction over this matter.

3. Answering Paragraph 3, County Defendants admit the Court has

pendent jurisdiction over Plaintiff’s state law claims.

4. Answering Paragraph 4, County Defendants admit venue is proper.

5. Answering Paragraph 5, County Defendants admit Plaintiff is not

required by law to file an administrative claim prior to filing suit.

THE PARTIES

6. Answering Paragraph 6, County Defendants admit based on

information and belief.

7. Answering Paragraph 7, County Defendants admit the factual

allegations but deny Deputy Cox may be sued in his official capacity. Such claims

are frivolous under federal law when the governmental entity is subject to suit.

8. Answering Paragraph 8, County Defendants admit.

9. Answering Paragraph 9, this Paragraph is directed to individuals other

than County Defendants and, therefore, no answer is required.

FACTUAL ALLEGATIONS

10. Answering Paragraph 10, County Defendants admit Plaintiff was

arrested on August 25, 2019 and deny the remaining allegations.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 2
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 3 of 14

11. Answering Paragraph 11, County Defendants are without information

to admit or deny allegations concerning Plaintiff’s awareness.

12. Answering Paragraph 12, County Defendants admit.

13. Answering Paragraph 13, County Defendants are without information

to admit or deny allegations concerning Plaintiff’s decision-making process.

County Defendants admit Flathead County deputies caught up with Plaintiff and

placed him under arrest.

14. Answering Paragraph 14, County Defendants admit Flathead County

Deputy Tappan caught up with Plaintiff, pulled his Taser, and ordered White to

stop, which he did.

15. Answering Paragraph 15, White ignored Deputy Tappan’s repeated

orders to lie on the ground. After the arrival of Montana Highway Patrol Trooper

Nanna, Deputy Tappan was able to place Plaintiff on his stomach while Trooper

Nanna secured him in handcuffs.

16. Answering Paragraph 16, County Defendants admit other deputies

arrived on the scene but deny Plaintiff was “surrounded.”

17. Answering Paragraph 17, County Defendants deny. Plaintiff actively

resisted arrest throughout the arrest process. He screamed obscenities at law

enforcement, spat at Deputy Cox and perhaps others, resisted application of a spit

mask and was generally combative and uncooperative with law enforcement.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 3
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 4 of 14

18. Answering Paragraph 18, County Defendants deny. Plaintiff

complained he had trouble breathing through the spit mask once he was in the

patrol vehicle.

19. Answering Paragraph 19, County Defendants admit he was

handcuffed while lying on the ground from the time he was placed in that position

until escorted to the patrol vehicle. Plaintiff continually resisted arrest throughout

the process for the purpose of escaping custody and assaulting law enforcement.

20. Answering Paragraph 20, County Defendants deny. Deputy Cox

placed his foot next to Plaintiff’s head to block further bodily fluids from hitting

him and other deputies while the spit mask was being placed over Plaintiff’s

mouth.

21. Answering Paragraph 21, County Defendants deny.

22. Answering Paragraph 22, County Defendants admit Plaintiff was

placed in a patrol truck where he kicked the door frame and the vehicle while

deputies worked to seat him in the vehicle. During this process, Plaintiff used his

upper body and head to strike Deputy Van Ark twice in the head, injuring him.

Even after being secured in the patrol truck, Plaintiff continued to use his head and

body to repeatedly strike the windows and cage inside the vehicle.

23. Answering Paragraph 23, County Defendants deny. Plaintiff was

quite active throughout his transport to Flathead County Detention Center (FCDC).

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 4
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 5 of 14

Plaintiff was verbally combative and aggressive in both his words and acts. For

example, he told Deputy Tappan that there were 37 ways in which he could kill the

Deputy or himself at his disposal. He then asked Deputy Tappan if he had children.

When Deputy Tappan replied it was none of his business, Plaintiff said, “Oh, I’ll

find out.” Plaintiff then advised Deputy Tappan of his intention to kick out the

window of the patrol vehicle. Plaintiff began to violently smash his head into the

front portion of the prisoner transport cage in the vehicle. Deputy Tappan advised

Plaintiff that if he did not behave he would be hobbled. Plaintiff then stepped

through his handcuffs and slipped them to the front of his body. At that point,

Deputy Tappan pulled over and, with the assistance of Trooper Nanna and

Sergeant Morrison, secured Plaintiff’s legs together with a length of soft cotton

rope and Deputy Tappan resecured the handcuffs behind Plaintiff’s back.

24. Answering Paragraph 24, County Defendants deny.

25. Answering Paragraph 25, County Defendants are unaware of whether

Plaintiff has a seizure disorder but deny he experienced a seizure during transport.

26. Answering Paragraph 26, County Defendants admit Plaintiff was

transported to Kalispell Regional Medical Center (KRMC) from FCDC because he

appeared to be hyperventilating and began thrashing around in the patrol vehicle

enroute to FCDC. Deputy Tappan activated his lights and sirens and called for an

ambulance to respond to FCDC for a seizure patient. When Deputy Tappan

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 5
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 6 of 14

arrived at FCDC, he and another deputy took Plaintiff from the vehicle and laid

him on the ground. Deputy Tappan maintained control of Plaintiff’s head until he

stopped thrashing around. Medical personnel advised Deputy Tappan that Plaintiff

was not experiencing classic signs of a seizure but recommended that he be

transported to KRMC for further evaluation. Deputy Tappan transported Plaintiff

to KRMC where he was examined by a physician. The examining physician found

Plaintiff exhibited no symptoms which required that he be admitted to KMRC and

released Plaintiff for transport back to FCDC.

27. Answering Paragraph 27, County Defendants deny.

28. Answering Paragraph 28, County Defendants deny. The only

complaint made by Plaintiff in connection with the alleged head trauma was that he

suffered from migraine headaches as a result.

29. Answering Paragraph 29, County Defendants deny.

30. Answering Paragraph 30, County Defendants deny.

31. Answering Paragraph 31, County Defendants deny.

COUNT 1
42 USC § 1983
INDIVIDUAL LIABILITY

32. Answering Paragraph 32, the County Defendants reallege their

answers to Paragraphs 1 through 31 above as though fully set forth herein.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 6
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 7 of 14

33. Answering Paragraph 33, County Defendants admit Deputy Cox was

acting under color of law and pursuant to Flathead County’s customs policies, and

practices during his interactions with Plaintiff on August 25, 2019.

34. Answering Paragraph 34, County Defendants admit Deputy Cox was

acting within the course and scope of his employment with Flathead County during

his interactions with Plaintiff on August 25, 2019. The remaining allegations are

denied.

35. Answering Paragraph 35, County Defendants deny.

36. Answering Paragraph 36, County Defendants deny.

37. Answering Paragraph 37, County Defendants deny.

38. Answering Paragraph 38, County Defendants deny.

39. Answering Paragraph 39, County Defendants deny.

40. Answering Paragraph 40, County Defendants deny.

COUNT 2
42 USC § 1983
ENTITY LIABILITY

41. Answering Paragraph 41, the County Defendants reallege their

answers to Paragraphs 1 through 40 above as though fully set forth herein.

42. Answering Paragraph 42, County Defendants deny.

43. Answering Paragraph 43, County Defendants deny.

44. Answering Paragraph 44, County Defendants deny.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 7
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 8 of 14

45. Answering Paragraph 45, County Defendants deny.

46. Answering Paragraph 46, County Defendants deny.

COUNT 3
MONTANA CONSTITUTIONAL RIGHTS

47. Answering Paragraph 47, the County Defendants reallege their

answers to Paragraphs 1 through 46 above as though fully set forth herein.

48. Answering Paragraph 48, the Paragraph contains allegations of law to

which no response is required. To the extent a response is required, County

Defendants deny.

49. Answering Paragraph 49, County Defendants deny.

50. Answering Paragraph 50, the Paragraph contains allegations of law to

which no response is required. To the extent a response is required, County

Defendants deny.

51. Answering Paragraph 51, County Defendants deny.

COUNT 4
NEGLIGENCE

52. Answering Paragraph 52, the County Defendants reallege their

answers to Paragraphs 1 through 51 above as though fully set forth herein.

53. Answering Paragraph 53, the Paragraph contains allegations of law to

which no response is required. To the extent a response is required, County

Defendants deny. The remaining allegations of the Paragraph are denied.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 8
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 9 of 14

54. Answering Paragraph 54, County Defendants deny.

COUNT 5
ASSAULT AND BATTERY

55. Answering Paragraph 55, the County Defendants reallege their

answers to Paragraphs 1 through 54 above as though fully set forth herein.

56. Answering Paragraph 56, County Defendants deny.

57. Answering Paragraph 57, County Defendants deny.

COMPENSATORY DAMAGES

58. Answering Paragraph 58, County Defendants deny.

59. Answering Paragraph 59, County Defendants deny.

PUNITIVE DAMAGES

60. Answering Paragraph 60, this Paragraph is a description of Plaintiff’s

claim to which no answer is required.

61. Answering Paragraph 61, County Defendants deny.

62. Answering Paragraph 62, County Defendants deny.

63. Answering Paragraph 63, County Defendants deny.

ATTORNEYS’ FEES

64. Answering Paragraph 64, this Paragraph is a statement of law to

which no answer is required.

65. Answering Paragraph 65, County Defendants deny.

Any allegations not specifically admitted are denied.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 9
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 10 of 14

First Affirmative Defense

Plaintiff’s Complaint fails to state a claim against the County Defendants,

individually or in combination, upon which relief can be granted.

Second Affirmative Defense

Plaintiff failed to articulate a claim under 42 U.S.C. § 1983 against Flathead

County since there is no policy, custom, or practice of Flathead County at issue.

Third Affirmative Defense

Plaintiff’s injuries, damages, and losses, if any, were caused by the

intervening, superseding, or contributing acts of others.

Fourth Affirmative Defense

The County Defendants are entitled to immunity for their acts and omissions

alleged in Plaintiff’s Complaint.

Fifth Affirmative Defense

Plaintiff’s state law claims do not provide for personal liability against

Defendant Sam Cox. Thus, the claims are unreasonable and said Defendants are

entitled to attorneys’ fees and costs incurred in the defense of these claims. See

Germann v. Stephens, 2006 MT 130, 332 Mont. 303, 137 P.3d 545; and Mont.

Code Ann. § 2-9-305(5).

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 10
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 11 of 14

Sixth Affirmative Defense

The County is immune from punitive damages claims under 42 U.S.C. §

1983 and Montana law.

Seventh Affirmative Defense

The County Defendants are entitled to an award of attorney’s fees in

defending against Plaintiff’s § 1983 claim pursuant to 42 U.S.C. § 1988.

Eighth Affirmative Defense

County Defendants did not act in a manner which constituted deliberate

indifference to Plaintiff’s constitutional rights and there is, therefore, no basis for

liability against them under 42 U.S.C. § 1983.

Ninth Affirmative Defense

Plaintiff’s state constitutional claims are barred because adequate remedies

exist under statutory or common law.

Tenth Affirmative Defense

A use of force allowable under the provisions of Title 45, Chapter 3, Part 1,

provides immunity to the person using the force from civil damages for injury to

any person or property arising from injury to the person, or damage to the property

of the person, against whom the force was used. Mont. Code Ann. § 27-1-722(1).

The force used against Plaintiff during his arrest on August 25, 2019, if any, was

allowable under the provisions of Title 45, Chapter 2, Part 1.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 11
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 12 of 14

Eleventh Affirmative Defense

The use of force against Plaintiff on August 25, 2019, if any, was reasonable

under the circumstances at the time the force was used.

Twelfth Affirmative Defense

Plaintiff’s injuries, if any, were caused by his own comparative negligence

and his recovery is either barred or diminished in accordance with his percentage

of negligence pursuant to Montana Code Annotated § 27-1-702.

Thirteenth Affirmative Defense

Plaintiff’s claims are offset or barred by Plaintiff’s failure to take reasonable

care to minimize or to otherwise mitigate his damages, if any.

Fourteenth Affirmative Defense

To the extent that Plaintiff suffered from or had any pre-existing conditions,

any damages or injury attributable to such pre-existing conditions are not the

responsibility of County Defendants.

Fifteenth Affirmative Defense

In the event Plaintiff has received, or may receive, payment from a collateral

source as defined in Montana Code Annotated Section 27-1-307, as a result of any

injuries in whole or in part for which he seeks damages herein, his recovery must

be reduced by any amount paid or payable from such collateral source pursuant to

Montana Code Annotated Section 27-1-308.

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 12
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 13 of 14

Sixteenth Affirmative Defense

Damages, if any, are limited as set forth in Montana Code Annotated §§ 2-9-

105, 2-9-108, 2-9-305, 2-9-314, 2-9-317, and 27-1-722.

Seventeenth Affirmative Defense

At all times pertinent hereto, County Defendants acted with ordinary care

under the circumstances and adhered to all legal duties in their interactions with

Plaintiff.

Applicability of Affirmative Defenses

County Defendants reserve the right to amend their Answer to add additional

affirmative defenses that become known through the course of discovery.

The County asserts the foregoing affirmative defenses based upon

information and belief that they are or may be applicable to the present claim being

presented by Plaintiff. In the event the affirmative defenses are not legally or

factually warranted, any such inapplicable affirmative defenses will not be

pursued. Likewise, any additional affirmative defenses which become known

through the course of discovery will be asserted.

WHEREFORE, County Defendants pray for relief as follows:

1. That Plaintiff takes nothing by way of his Complaint and that it be dismissed

with prejudice;

2. For costs and attorney fees incurred in the defense of this matter; and

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 13
 Case 9:22-cv-00141-DWM Document 3 Filed 09/22/22 Page 14 of 14

3. For such other and further relief as the Court deems appropriate.

DATED this 22nd day of September 2022.

County Litigation Group

/s/ Maureen H. Lennon

DEMAND FOR JURY TRIAL

The County Defendants demand a trial by jury of all issues so triable.

DATED this 22nd day of September 2022.

County Litigation Group

/s/ Maureen H. Lennon

County Defendants’ Answer to Complaint and Demand for Jury Trial Page 14