IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISIONl 

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

TRACIE PARK,
                Plaintiff, )

vs.                        Case No. 96-3288-CV-S-3

THE FOREST SERVICE OF THE
UNITED STATES OF AMERICA,
et al.,           
                Defendants. ·


ANSWER OF DEFENDANT MILLS

COMES NOW defendant Mills, by and through counsel of record, and in answer to plaintiff's Complaint states to the Court as follows:

Nature of the Action

1. Defendant admits that the complaint seeks declaratory and injunctive relief, but denies all other averments contained within Paragraph 1 of plaintiff's complaint.

2. Defendant admits that civil actions for declaratory and injunctive relief may arise from the First and Fourth Amendments to the United States Constitution as made applicable to state officers such as Defendant Mills by the Due Process Clause of the Fourteenth Amendment, enforced by Congress through 42 U.S.C. Secs. 1983 & 1988 and 28 U.S.C. Secs. 2201& 2202, but denies generally that plaintiff's complaint states a claim thereunder and specifically denies that such claim arises against defendant Mills under any other authority averred in Paragraph 2 of plaintiff's complaint.

Jurisdiction and Venue

3. Defendant admits that this Court has jurisdiction over a claim under 42 U.S.C. Sec. 1983 pursuant to 28 U.S.C. Sec 1343(a)(3), but denies generally that plaintiff's complaint states a claim thereunder and specifically denies that this Court has jurisdiction over any cognizable claim against-defendant Mills pursuant to any other statutory authority averred in Paragraph 3 of plaintiff's complaint not specifically referred to above.

4. Defendant admits, without waiving his defense that plaintiff has failed to state a claim, that venue in any such claim is proper in the Western District of Missouri.

Parties

5. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 5 of plaintiff's complaint and, therefore, denies same.

6. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 6 of plaintiff's complaint and, therefore, denies same. 7. Defendant admits that tie is the Superintendent of the Missouri State Highway Patrol (hereinafter the "Patrol"), that the Patrol is a law enforcement agency established and operating under the laws of the State of Missouri, and that pursuant to that power Mills and the Patrol conduct law enforcement activities throughout the State of Missouri. Defendant further admits that he is a person

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within the meaning of 42 U.S.C. Sec. 1983 and that any claim brought by plaintiff's complaint is against defendant Mills in his official capacity. Defendant Mills denies all other averments contained within Paragraph 7 of plaintiff's complaint.

8. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained with Paragraph

8 of plaintiff's complaint and, therefore, denies same.

General Allegations

9. Defendant admits that at the times set out in Paragraph 9 of plaintiff's complaint many persons traveled within the Mark Twain National Forest (hereinafter "MTNF") to a location where an annual gather of the "Rainbow Family" was occurring but states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the remaining averments contained within Paragraph 9 of plaintiff's complaint and, therefore, denies same.

10. Defendant denies the averments contained within Paragraph 10 of plaintiff's complaint.

11. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 11 of plaintiff's complaint and, therefore, denies same.

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12. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained with Paragraph 12 of plaintiff's complaint and, therefore, denies same.

13. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 13 of plaintiff's complaint and, therefore, denies same.

14. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 14 of plaintiff's complaint and, therefore, denies same.

15. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained within Paragraph 15 of plaintiff's complaint and, therefore, denies same.

16. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained with Paragraph 16 of plaintiff's complaint and, therefore, denies same.

17. Defendant states that he is without sufficient knowledge or information such that he can form a belief as to the truth of the averments contained with Paragraph 17 of plaintiff's complaint and, therefore, denies same.

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COUNT I

Defendant Mills answers Paragraphs 1-17 of Count I in the same manner, and to the same extent, as the answers to Paragraphs 1-17 of the answers to general averments set out above as if fully set out here.

18. Defendant Mills denies that he violated any right of the plaintiff, established any policy or authorized any conduct which resulted in unreasonable searches or seizures of plaintiff in the Fast and further denies any intention to establish a policy or authorize conduct which would cause a unreasonable search or seizure of plaintiff in the future. Defendant specifically denies that plaintiff is entitle to any declaratory or injunctive relief and generally denies all other averments contained in Paragraph 18 of Count I of plaintiff's complaint.

Wherefore, defendant Mills respectfully requests that this Court deny plaintiff any of the relief requested in Paragraphs A through D of Count I, deny her declaratory or injunctive relief, attorney's fees or any other relief whatsoever. Further, defendant Mills respectfully requests that this Court dismiss Count I and upon final resolution of this action in Mills' favor, grant defendant Mills any and all costs incurred in the defense of this matter.

COUNT II

Defendant Mills answers Paragraphs 1-17 of Count [I in the same manner, and to the same extent, as the answers to Paragraphs 1-17 of the answers to general averments set out above as if fully set out here.

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18. Defendant Mills denies that he violated any right of the plaintiff, established any policy or authorized any conduct which resulted in harassment or intimidation of plaintiff in the past and further denies any intention to establish a policy or authorize conduct which would cause either the harassment or intimidation of the plaintiff in the future. Defendant specifically denies that plaintiff is entitled to any declaratory or injunctive relief and generally denies all other averments contained in Paragraph 18 of Count !I of plaintiff's complaint.

19. Defendant Mills denies the averments contained in Paragraph 19 of Count II of plaintiff's complaint and states further that plaintiff has additionally and adequate remedies at law for redress of unconstitutional conduct of both Federal and State officers such that injunctive relief is not appropriate.

Wherefore, defendant Mills respectfully requests that this Court deny plaintiff any of the relief requested in Paragraphs A through D of Count II, deny her declaratory or injunctive relief, attorney's fees or any other relief whatsoever. Further, defendant Mills respectfully requests that this Court dismiss Count II and upon final resolution of this action in Mills' favor, grant defendant Mills any and all costs incurred in the defense of this matter.

Affirmative Defenses

In so much as plaintiff has brought the instant action for declaratory and injunctive relief against defendant Mills in his official capacity, any defense available to defendant Mills against the award of money damages arising from the Eleventh

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Amendment is not strictly applicable. However, defendant Mills states that such a defense is applicable should the plaintiff amend the instant complaint, and he specifically asserts said defense as a shield to any such amendment.

First Defense

Defendant Mills asserts that plaintiff's complaint has failed to state a claim for which relief can be' granted in that, inter alia, it has not specifically alleged any policy, regulation or authorization of future course of conduct of alleged agents of the defendant which is in violation of any provision of the Constitution of the United States or laws of the United States, that there is no justiciable question of the rights of the respective parties in existence such that a declaratory judgment can be entered ,and that there are sufficient adequate remedies available to plaintiff at law such that injunctive relief is not proper in this case. For these and other reasons, Plaintiffs complaint should be dismissed and costs assessed against the plaintiff.

Second Defense

Defendant Mills asserts that to the extent that plaintiff's petition seeks redress of constitutional rights of other members of the Rainbow Family, or other members of the public at large, the plaintiff lacks standing to complain about any alleged violation of another's constitutional rights and no case or controversy exist such that this Court has jurisdiction over those claims.

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Respectfully submitted,

JEREMIAH W. (JAY) NIXON
Attorney General

Assistant Attorney Gene
Mo. Bar No; 40990

GEOFFREY W. PRECKSHOT
Assistant Attorney General
Mo. Bar No. 38070

P.O. Box 899
Jefferson City, MO 65102
573-751-1508
573-751-5391 (Facsimile)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was mailed, postage prepaid, this 28th day of August, 1096, to the attorney of record:

Fred L. Slough, Esq. 4051 Broadway, Suite 3 Kansas City, MO 64111

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