EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al

Filing 37

BRIEF in Support of Motion to Dismiss by Defendant BENJAMIN HIMAN filed by BENJAMIN HIMAN. (CRAIG, JOEL)

E V A N S et al v. DURHAM, NORTH CAROLINA, CITY OF et al

D o c . 37

U N I T E D STATES DISTRICT COURT M I D D L E DISTRICT OF NORTH CAROLINA D U R H A M DIVISION F ile No. 1:07-CV-739-JAB-WWD D A V I D F. EVANS, COLLIN FINNERTY, a nd READE SELIGMANN, ) ) ) Pla intif fs, ) ) vs. ) DEFENDANT BENJAMIN ) HIMAN'S BRIEF IN SUPPORT THE CITY OF DURHAM, NORTH ) OF HIS MOTION TO DISMISS CA RO LIN A, M ICH AE L B. NIFONG, ) M AR K GOTTLIEB, BENJAM IN HIMAN, ) DA VI D ADDISON, LINWOOD W ILS ON , ) PA TR ICK BAKER, STEVEN CHALMERS, ) BE VE RL Y COUNCIL, RONALD HODGE, ) JEF F LAM B, M ICH AE L RIPBERGER, ) LE E RUSS, DNA SECURITY, INC., ) R I CH A R D CLARK, and BRIAN MEEHAN, ) ) Defendan ts. ) ________________________________________________________________________ N O W COM E S Defendant Benjamin Himan ("Investigator Himan"), by and through his undersigned attorney, and submits the following Brief in support of his motion to dismiss t h i s action pursuant to 12(b)(6) of the Rules of Civil Procedure. M A T T E R BEFORE THE COURT T h e matter before the Court is Defendant Investigator Benjamin Himan's motion to d i s m i s s Plaintiffs' claims against him, set out in the First, Second, Third, Seventh, Eighth, N i n t h , Tenth, Thirteenth, Fourteenth, Fifteenth, Sixteenth and Eighteenth Causes of Action

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in their Amended Complaint for failure to state a claim upon which relief may be granted pur sua nt to Fed. R. Civ. P. 12(b)(6). STATEM E N T OF THE CASE P l a i n ti f f s David F. Evans, Collin Finnerty and Reade Seligmann filed this action on O c t o b e r 5, 2007, alleging violations of 42 U.S.C. § 1983 (2007), § 1985 (2007), § 1986 ( 2 0 0 7 ) along with related violations of state law. On November 27, 2007, the parties filed a Joint Motion to Extend Page Limitations and Establish a Briefing Schedule. Judge Beaty a l l o w e d this motion on November 29, 2007. Under the terms of the Order, Defendants have until January 15, 2008, in which to file briefs in support of their motions to dismiss, not to e x c e e d fifty pages in length. Investigator Himan's Motion to Dismiss has been filed pursuant to this Order. S T A T E M E N T OF FACTS P l a i n ti f f s allege that they were wrongfully accused of rape by Crystal Mangum after s h e and another woman performed as exotic dancers at a party attended by Duke lacrosse players on March 13, 2006. Plaintiffs were cleared of all charges before trial. Amended Co mp l. ¶¶ 316-19. Due in part to information gathered by investigator Himan and other mem bers of the Durham Police Department, the Attorney General ultimately dismissed all c h a r g e s against Plaintiffs, completely exonerated them and declared them innocent in a pub lic statement on April 11, 2007. Amended Compl. ¶¶ 318-19. Plaintiffs now seek to

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r e c o v e r damages against Investigator Himan based upon his participation in this inv estig ation . Amended Compl. ¶¶ 38, 48. The Amended Complaint alleges that Investigator Himan's participation in the inves tigation of Mangum's charges consisted of the following acts: Initial Investigation O n or about March 16, 2006, Sgt. Mark Gottlieb assigned Investigator Himan to assist him in his investigation into Mangum's claims. Amended Compl. ¶ 84. That same day, I n v e s ti g a t o r Himan interviewed Mangum, who provided him with a physical description of h e r alleged assailants. Amended Compl. ¶¶ 92, 101. Mangum had initially claimed she had b e e n raped during her intake interview at Durham ACCESS, a local outpatient mental health c l i n ic , in the early morning hours of March 14, 2006. Amended Compl. ¶¶ 45-6. Based on h e r rape allegation, Mangum was moved to Duke Medical Center for a rape examination, w h i c h found evidence of "diffuse edema of the vaginal walls", consistent with having e n g a g e d in intercourse with multiple different partners. Amended Compl. ¶¶ 48, 72. O n March 16, 2006, Investigator Himan and another Durham police officer also e x e c u t e d a search warrant for the premises of 610 N. Buchanan, the scene of the alleged o f f e n s e . Amended Compl. ¶ 108. The three lacrosse players living there, including Plaintiff E v a n s , agreed to accompany the officers to the police station for interviews. Amended Co mp l. ¶¶ 110-12. All three submitted to a "Sexual Assault Suspect Kit". Amended Compl. ¶ 114.
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O n May 20, 2006, Investigator Himan spoke with Tammy Rose of Angels Escort S e r v i c e , who identified Kim Pittman as the second dancer who performed with Mangum at 6 1 0 N. Buchanan on the night in question. Amended Compl. ¶ 86. That same day I n v e s ti g a t o r Himan contacted Pittman and asked her to come to the Durham Police station for an interview. Amended Compl. ¶ 87. On March 22 and 23, 2006, Investigator Himan and Sgt. Gottlieb, in conjunction with t h e District Attorney's Office and Durham Police attorney Toni Smith, filed for and received a Non-Testimonial order, directing all white members of the Duke lacrosse team to provide DN A samples, submit to physical examinations and allow themselves to be photographed. Am end ed Compl. ¶ 120. Investigator Himan's Reporting to Senior Officials O n March 24, 2006, the District Two Uniform Patrol Commander of the Durham P o l i c e Department, Captain Jeff Lamb, informed Investigator Himan and Sgt. Gottlieb that D u r h a m County District Attorney Michael Nifong would direct or help direct the i n v e s ti g a t io n . Amended Compl. ¶¶ 24, 133. Captain Lamb further instructed Himan and G o t t l ie b to continue to report up the Durham Police chain of command and to also report to s e n i o r command staff to the Durham Police Department on the progress of their inv estig ation . Amended Compl. ¶ 133. Three days later, Investigator Himan and Sgt. Gottlieb met with Nifong to brief him

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o n the status of the investigation and provided a detailed description of all of the known info rma tion . Amended Compl. ¶ 136-37. The April 4 th Identification Procedure A c c o r d i n g to the Amended Complaint, Investigator Himan and Sgt. Gottlieb met with N i f o n g "to plan a new identification procedure" on or about March 31, 2006. Amended Co mp l. ¶ 180. Plaintiffs allege that the plan was for "Gottlieb. . . [to] show Mangum an a r r a y consisting solely of photographs of all white Duke lacrosse players, without any nons u s p e c t s " and that this procedure was to be videotaped. Amended Compl. ¶ 180. Plaintiffs f u r t h e r allege that this array process differed from established Durham police procedure. Am end ed Compl. ¶ 186. The photo array was shown to Mangum on April 4, 2006. Amended Compl. ¶ 188. D u r i n g the array Mangum identified Plaintiffs Reade Seligmann and Collin Finnerty. Amended Compl. ¶¶ 191-92. Mangum hesitated, but said that she was "90%" certain that Pla intif f David Evans was one of the men who assaulted her. Amended Compl. ¶ 193. Investigator Himan's Grand Jury Testimony O n April 17, 2006, Plaintiffs Collin Finnerty and Reade Seligmann were indicted for f i r st - d e g re e rape, first-degree sex offense, and kidnaping. Amended Compl. ¶¶ 212-13. On M a y 15, 2006, Plaintiff David Evans was likewise indicted for first-degree rape, first-degree s e x u a l offense and kidnaping. Amended Compl. ¶ 238. Plaintiffs allege that Investigator H i m a n , with others, "provided inculpatory testimony before the grand jury . . . despite actual
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k n o w l e d g e " of [their] innocence." Amended Compl. ¶¶ 215, 240. Plaintiffs further allege t h a t Investigator Himan had agreed with Sgt. Gottlieb and District Attorney Nifong "that they wo uld mislead the grand jury as to the nature of the evidence . . . and not reveal to the grand jury the evidence of [their] actual innocence." Amended Compl. ¶¶ 219, 241. Plaintiffs do not allege that Investigator Himan made false statements to a grand jury o r do Plaintiffs make specific allegations as to the substance of Investigator Himan's tes tim on y. As his grand jury testimony was not recorded, Plaintiffs make only bald

a s s e r ti o n s that Investigator Himan provided "inculpatory testimony" while "knowing" of their innocence. Amended Compl. ¶¶ 215, 240-45. Investigator Himan's Dealings With DNA Security, Inc. O n or about April 10th , prior to Plaintiffs' indictments, Investigator Himan, District A t t o r n e y Nifong and Sargent Gottlieb met with representatives of DNA Security, Inc. ("DS I"). Amended Compl. ¶ 207. DSI had been engaged at District Attorney Nifong's d i r e c ti o n to perform sensitive DNA testing. Amended Compl. ¶ 199. During the April 10th m e e t i n g , Defendant Brian M eeh an detailed the results of DSI's testing, which found that n o n e of the Duke lacrosse players were contributors of DNA on the rape kit items taken from M a n g um . Amended Compl. ¶ 207. According to Plaintiffs, those present then "began to c o n s i d e r ways in which these exculpatory results could be concealed and obfuscated in order to manufacture probable cause, obtain indictments, and subsequently prosecute three Duke lacro sse players . . . " Amended Compl. ¶ 208. -6-

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O n April 21, 2006, after the indictments of Plaintiffs Finnerty and Seligmann and before the indictment of Plaintiff Evans, Investigator Himan, District Attorney Nifong and S a r g e n t Gottlieb again met with DSI representatives, during which they learned that DNA f r o m four different men, none of them members of the Duke lacrosse team, was found in Ma ngum 's rape kit. Amended Compl. ¶ 224. According to Plaintiffs, those present then " c o n s p i re d and acted to fabricate [a] . . . false and misleading report" including agreeing "to c o n c e a l and obfuscate this exculpatory evidence." Amended Compl. ¶ 225-26. Specifically, t h e y agreed that DSI would produce a written report, but that it would not include "the fact t h a t none of the [lacrosse] players' DNA profiles matched or were consistent with any of the D N A found on the rape kit items . . . " Amended Compl. ¶ 225. Those present also agreed t h a t there would be "no report or notes memorializing the substance of their discussions . . . during the April 21 meeting." Amended Compl. ¶ 225. On May 12, 2006, Investigator Himan and District Attorney Nifong returned to DSI to meet with its representatives and review a ten page report that had been prepared. A m e n d e d Compl. ¶ 229. According to Plaintiffs, those present "understood and agreed that t h e . . . report would be provided to the Plaintiffs and the court under the knowingly false p r e t e n s e that it . . . contained all of DSI's findings . . . " Amended Compl. ¶ 231. Plaintiffs f u r t h e r allege that the report "intentionally omitted the DNA results that matched or were c o n s i s te n t with the multiple unidentified men who had not provided reference specimens . . . " Amended Compl. ¶ 232.
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I n v e s t ig a t o r Him a n ' s Dealings With Witnesses Shortly after contacting Kim Pittman and getting her initial statement, Investigator Himan located an outstanding warrant against her for parole violations. Amended Compl. ¶ ¶ 256-57. On March 22, 2006, Pittman provided a formal written statement in which she r e c a n te d her initial statement that no assault had occurred. Amended Compl. ¶ 259.

P l a i n ti f f s allege that Pittman changed her story after being told "that if she changed her c a t e g o ri c a l denial and timeline of events, she would be given a deal on her parole violation." A m e n d e d Compl. ¶¶ 258-59. Pittman was then released on what Plaintiffs describe as "very favo rable bail terms recommended by the District Attorney's Office." Amended Compl. ¶ 260 . Almost one month later, on April 24, 2006, Investigator Himan interviewed M oeze ldin Elmostafa, who provided him with a written statement that corroborated Plaintiff Seligma nn' s alibi. Amended Compl. ¶ 246. Investigator Himan then reported the substance o f the interview and statement to District Attorney Nifong. Amended Compl. ¶ 247. I n v e s ti g a t o r Himan was later directed to arrest Elmostafa on a 2003 arrest warrant for s h o p l if t i n g . Amended Compl. ¶ 248. On May 10th , Investigator Himan arrested Elmostafa o n the outstanding warrant. Amended Compl. ¶ 250. Plaintiffs allege that Investigator H i m a n and another officer inquired regarding whether Elmostafa wanted to change his story r e g a r d in g his alibi for Plaintiff Seligmann both before and after his arrest. Amended Compl. ¶¶ 250-51.
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P l a i n ti f f s further allege that Investigator Himan, acting in concert with others and at t h e direction of the more senior officials, "attempted to intimidate and discredit Durham P o l i c e Sgt. John Shelton by subjecting him to an internal investigation, accusations of unprofession al conduct, and threats of disciplinary action for reporting Mangum's recantation o f her rape claim while at Duke Medical Center on March 13." Amended Compl. ¶ 264 Am end ed Compl. ¶ 250. Beginning on or about March 28, 2006, Investigator Himan, with the assistance of o t h e r s , prepared and disseminated a flyer seeking information regarding the alleged assault, i n d i c at i n g that the Duke lacrosse team had hosted the party and the address where it occurred. Am end ed Compl. ¶ 160. On April 13th , Investigator Himan and Sgt. Gottlieb entered student dormitories and a t t em p t e d to conduct interviews with Duke lacrosse players regarding the events in question o n March 13, 2006. Amended Compl. ¶ 263. Plaintiffs describe these as "`ambush' i n t e r v i e w s " and allege that they were done in an "attempt[] to intimidate other Duke lacrosse playe rs . . . " Amended Compl. ¶ 263. QUESTIONS PRESENTED 1. H av e Plaintiffs stated cognizable claims against Investigator Himan under

federal and state law? 2. C a n Plaintiffs' claims overcome Investigator Himan's qualified immunity for

f e d e r a l claims and absolute immunity from personal liability for state law claims?
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ARGUMENT I n v e s ti g a t o r Himan complied with his duties as a law enforcement officer under North C a r o l i n a law. Therefore Plaintiffs' novel theories of federal and state law fail to state a valid c a u s e of action against him. Plaintiffs have not sufficiently pled violations of their

c o n s t it u t io n a l or state rights for which Investigator Himan is responsible. As they cannot establish an underlying violation, Plaintiffs cannot recover. Acco rdi n g to the Amended Complaint, Investigator Himan provided District Attorney Nif ong with all of the potentially exculpatory evidence he was aware of. The grand jury's d e c i s io n to indict Plaintiffs was entirely outside of his control. As such, Investigator Himan is protected by the doctrine of qualified immunity from liability for federal constitutional claim s and is absolutely immune from individual liability for state law claims. Applicable Legal Standard A complaint should be dismissed for failure to state a claim when it appears beyond d o u b t that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied, 503 U.S. 9 3 6 (1992). To state a viable claim, the plaintiff must "allege facts sufficient to state all of t h e elements." Bass v. E.I. DuPont De Nemours & Comp., 324 F.3d 761, 765 (4th Cir. 2 0 0 3 ) . Because the primary objective of Rule 12(b)(6) is to test the legal sufficiency of a plaintiff's claims, a court is not bound by any legal conclusions that are included in the com plaint. Heckman v. University of North Carolina at Chapel Hill, 19 F. Supp. 2d 468, 471 -10-

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( M .D . N .C . 1998), rev. denied, 166 F.3d 1209 (4th Cir. 1998); see also Gladden v. Winston S a l e m State Univ., 495 F. Supp. 2d 517, 520-21 (M.D.N.C. 2007) ("`The presence [] of a few concluso ry legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) w h e n the facts alleged in the Complaint' cannot support the legal conclusion." (quoting Y o u n g v. City of Mount Rainer, 238 F.3d 567, 577 (4th Cir. 2001))). Plaintiffs' Claims Against Investigator Himan P la in ti ff s' federal claims against Investigator Himan include alleged violations of § 1 9 8 3 for "malicious prosecution and seizure" (Count 1), "concealment of evidence" (Count 2 ) and "fabrication of evidence" (Count 3). Plaintiffs also allege that Investigator Himan is liable for conspiracy in violation of § 1983 (Count 7) and § 1985(2)-(3) (Counts 9-10).1 P l a i n t i f f s ' state law claims include malicious prosecution (Count 13), common law o b s t r u ct i o n of justice (Count 14), intentional infliction of emotional distress (Count 15), n e g l i g en c e (Count 16) and negligent infliction of emotional distress (Count 18). A review o f the actions taken by Investigator Himan make clear that Plaintiffs' claims fail as a matter of law.

P l a i n ti f f s allege Counts 7-10, 13-16 and 18 against Investigator Himan in both his i n d i v id u a l and official capacity. Official capacity claims are really claims against I n v e s ti g a t o r Himan's employer the City of Durham, an entity Plaintiffs' have sued directly. T h e y are duplicative and should be dismissed. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004).
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I.

I N VE S TI G AT O R HIMAN'S INVOLVEMENT IN THE PREPARATION OF T H E APRIL 4t h PHOTO ARRAY DOES NOT GIVE RISE TO A CAUSE OF A C T IO N A. P la in tiffs Do Not Have a Viable Claim Arising From The April 4 t h P h o t o Array Under § 1983, as Plaintiffs Were Never Tried

T here is no legal basis for a § 1983 claim arising from an allegedly suggestive photo a r r a y where Plaintiffs was never tried. See, e.g., Antonio v. Moore, 174 Fed. Appx. 131, 134 (4th Cir. 2006) (Section 1983 claims only arise from a suggestive lineup where the conduct "imp air [ s ] . . . defendant's core right­i.e., the right to a fair trial."). The remedy for an u n c o n s t it u t io n a l array is exclusion of the identification. As Plaintiffs were never tried, their § 1983 claim arising from the identification fails as a matter of law. See, e.g., Burrell v. V i r g i n ia , 395 F.3d 508, 513 (4th Cir. 2005) (even if Fifth Amendment rights would have b e e n violated by officer's questioning, no violation could be established because incr imin ating statements were not used at trial). B. E v e n If The April 4 t h Photo Array Was Improper, Investigator H i m a n is Protected From Plaintiffs' Federal Claims by Qualified Imm unity

E v e n if the April 4 th photo array procedure was unconstitutional, and Plaintiffs had a viable legal claim against Investigator Himan arising out of it, his actions are protected by q u a l i fi e d immunity, as a "reasonable officer" in Himan's position would have believed that his conduct was lawful. 2 Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994). A cause of
2

D e t e r m i n a ti o n of qualified immunity may be made at either the motion to dismiss or summ ary judgment stage, however, the Supreme Court has "repeatedly . . . stressed the
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a c t io n under § 1983 requires more than Investigator Himan violating a right guaranteed under t h e U.S. Constitution; that right must also have been clearly established at the time of the alleg ed violation. See Saucier v. Katz, 533 U.S. at 201-02, 121 S. Ct. 2151, 150 L. Ed. 2d 272 . For a police officer to lose his qualified immunity "the contours of the right must be s u f f i c ie n t l y clear that a reasonable official would understand that what he is doing violates t h a t right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). "The right must be sufficiently particularized to put potential defendants on notice t h a t their conduct is probably unlawful." Gooden v. Howard County, 954 F.2d 960, 968 (4th C i r . 1992) (quoting Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986)). The

a p p l i ca b ility of qualified immunity is to be assessed at "the time at which the action or i n a c ti o n occurred." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. E d. 2d 396 (1982); see also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 1 0 4 L. Ed. 2d 443 (1989) (determination regarding the reasonableness of an officer's use of for ce should not be judged "with the 20/20 vision of hindsight"). Even if the identification procedure did not comply with the Durham Police Dep artmen t's own internal standards, there is little controlling authority that Plaintiffs can p o i n t to in support of their claim that the presentation of a series of photos violated "clearly importance of resolving immunity questions at the earliest possible stage in litigation." S a u c i e r v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001) (citations om itted ).
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e s t a b li s h e d statutory or constitutional rights of which a reasonable person would have kno wn ." Simmons v. Poe, 47 F.3d 1370, 1385 (4th Cir. 1995). The photos were not unduly s u g g e s t iv e for the identification of the Plaintiffs. All of the photos were identical in format a n d the pictured individuals were similar in age. The photos did not indicate that the police s u s p e c te d any specific members of the lacrosse team. Likewise, the photos of Plaintiffs S e l i g m a n n and Evans had been shown to Mangum previously, as had the photos of many oth er members of the team. Amended Compl. ¶¶ 93,177, 188, 191-193. This procedure lacked suggestiveness equal to that of leaving a photo of a single i n d i v id u a l on the desk of an undercover police officer, something that the Supreme Court f o u n d reasonable under the circumstances in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) (stating that "reliability is the linchpin in determining the adm issibility of identification testimony"). Nor was the procedure as suggestive as the v i e w i n g of a single individual at the police station approximately seven months after a rape, w h i c h the Supreme Court likewise found reasonable under the circumstances in Neil v. B i g g e r s , 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Where the procedure was not unduly suggestive of the Plaintiffs, there is little support f o r the contention that the photo array was necessarily improper. See, e.g., United States v. S a u n d e r s , 501 F.3d 384, 390 (4th Cir. 2007) (holding that the six-photo array shown to w i t n e s s was impermissibly suggestive due in part to the fact that the defendant's photo " l o o k e d strikingly different"). Investigator Himan cannot have been on notice that the April
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4 th photo array was "probably unlawful" under the Fourth Amendment, as Plaintiffs now c la im . Gooden, 954 F.2d at 968 (quotations omitted). As a reasonable officer, Investigator H i m a n was justified in believing that any questions regarding the alleged suggestiveness of the April 4 th photo array would have been resolved in the criminal trial. II. I N VE S TI G AT O R HIMAN DID NOT CAUSE THE INDICTMENTS AND T H E R E F O R E CANNOT BE HELD LIABLE FOR PLAINTIFFS' FEDERAL C L A I M S ARISING OUT OF THEM A. T h e Grand Jury M a d e Its Own, Independent, Decision to Indict Plaintiffs

T h e decision by the grand jury to indict Plaintiffs is an independent and intervening a c t io n that breaks the causal chain between Investigator Himan's purported malfeasance and P l a i n t i f f s ' claimed injuries. See Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996) ( " [T ] h e chain of causation is broken by an indictment, absent an allegation of pressure or i n f l u en c e exerted by the police officers, or knowing misstatements made by the officers to t h e prosecutor."); Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996) (even if d e f e n d a n t officer had "set in motion a malicious prosecution . . . , the preliminary hearing broke the `chain of causation.'"). P l a i n t i f f s ' insinuations that the grand jury proceedings were somehow tainted by I n v e s ti g a t o r Himan's alleged failure to present the grand jury with exculpatory evidence, A m e n d e d Compl. ¶¶ 154, 162, 219-19, 241, are legally irrelevant. The Amended Complaint d o e s not allege Investigator Himan perjured himself before the grand jury, only that he

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p r o v i d e d "inculpatory testimony" while "knowing" of Plaintiffs' innocence. Comp. ¶¶ 215, 2 3 8 , 340-45. "[A]n indictment valid on its face is not subject to challenge on the ground that t h e grand jury acted on the basis of inadequate or incompetent evidence . . . or even on the basis of information obtained in violation of a defendant's Fifth Amendment privilege a g a i n s t self-incrimination". U.S. v. Calandra, 414 US 338, 344, 94 S. Ct. 613, 38 L. Ed. 2d 5 6 1 (1974) (citations omitted); see also United States v. Waldon, 363 F.3d 1103, 1109 (11th Cir. 2004) ("The government is under no duty to bring exculpatory evidence to the grand jury's attention.").3 B. T h e District Attorney, Not Investigator Himan, Was Responsible F o r Producing Potentially Exculpatory Evidence to Plaintiffs

A c c o r d i n g to Plaintiffs' Amended Complaint, Investigator Himan provided District A t t o r n e y Nifong with all of the purported exculpatory evidence he was aware of. Amended Co mp l. ¶ 137. Under North Carolina law, the office of the District Attorney is "responsible f o r the prosecution on behalf of the State of all criminal actions in the Superior Courts of his dis t r i c t , perform such duties related to appeals therefrom as the Attorney General may r e q u i re , and perform such other duties as the General Assembly may prescribe." N.C. Const. Art. I, § 18(1). The District Attorney has sole authority to prosecute under Art. IV, § 18(1), a n d thus, as a representative of the State, "decides who shall be initially charged, drafts A l t h o u g h some courts have suggested that an indictment might not break the causal chain if the defendant committed perjuy before the grand jury, see, e.g., Wilkins v. Clary, No. 3 : 0 1 C V 7 9 5 , 2005 LEXIS 13398, at * 26 (E.D. Va. July 5, 2005), Plaintiffs make no such alleg ation .
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c r i m i n al indictments for submission to the grand jury, prepares information . . . " State v. Sm ith , 359 N.C. 199, 225, 607 S.E.2d 607, 625 (2005) (Brady, J., concurring). In that role a s prosecutor, District Attorney Nifong had the "ultimate responsibility" for disclosing all pot entia lly exculpatory evidence to Plaintiffs. Jean v. Collins, 221 F.3d 656, 661 (4th Cir. 2 0 0 0 ) (for purposes of § 1983 claims, "the law has already placed ultimate responsibility u p o n the prosecutor for disclosing [evidence favorable to the accused, as discussed in] Brady . . . to the defense." (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963))). As a law enforcement officer in North Carolina, Investigator Himan has "no i n d e p e n d e n t authority to make prosecutorial decisions." State v. Sturgill, 121 N.C. App. 629, 6 3 8 , 469 S.E.2d 557, 562 (1996). The presentation of evidence to the grand jury, and its d e c i s io n to indict, was out of Investigator Himan's control. See Rhodes v. Smithers, 939 F. S u p p . 1256, 1274 (S.D. W.Va. 1995) ("[W]here an officer presents all relevant probable c a u s e evidence to an intermediary, such as a prosecutor, a grand jury, or a magistrate, the i nt er m ediary 's independent decision to seek a warrant, issue a warrant, or return an i n d i c tm e n t breaks the causal chain and insulates the officer from a section 1983 claim based on lack of probable cause for an arrest or prosecution.") (italics added).

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III.

I N VE S TI G AT O R HIMAN CANNOT BE HELD LIABLE UNDER P L A I N T I F F S ' FEDERAL CLAIMS FOR NOT PROVIDING PURPORTEDLY E X C U L P AT O R Y EVIDENCE OR FOR HIS ALLEGED INVOLVEMENT IN T H E FABRICATION OF A DNA REPORT A. I n v e s t ig a t o r Himan is Not Responsible Under North Carolina Law F o r Providing Exculpatory Evidence to Plaintiffs

According to Plaintiffs' allegations, Investigator Himan provided all alleged exculpato ry evidence he was aware of to the prosecutor, District Attorney Nifong. Amended Co mp l. ¶ 137. It was District Attorney Nifong, in his role as prosecutor, who is responsible f o r providing exculpatory evidence to defendants and their counsel. See N.C. Const. Art. I, § 18(1). Thus the allegation that Investigator Himan "attempt[ed] to hide exculpatory DNA e v i d e n c e in hundreds of pages of raw data", Amended Compl. ¶ 491, states no claim against Inv estig ator Himan. B. I n v e st i g a to r Himan Had no Connection to, or Role in, The DSI D N A Report Plaintiffs Describe in Paragraph 352 of Their A m en d ed Complaint

The DNA report was not even prepared until after Plaintiffs Collin Finnerty and R e a d e Seligmann were indicted, Amended Compl. ¶ 225, so it cannot possibly be a cause of their indictments. Plaintiffs do not allege that Investigator Himan played a role in the presentation of the D N A report to the grand jury for Evans' indictment. Amended Compl. ¶ 240. Nor could th ey. Investigator Himan's grand jury testimony was not recorded and is not known. In any

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even t, Plaintiffs have not alleged that Himan testified falsely or with intent to deceive the g r a n d jury to return an indictment against Evans. C. I n v e s t ig a t o r Himan Complied With His Duties Under State Law, A n d Therefore Is Entitled to Qualified Immunity For Purposes of P l a i n t i f f s Federal Claims

Even if Investigator Himan was required by his role as a police officer to circumvent t h e prosecutor and provide all exculpatory evidence directly to defendants or the grand jury, t h e fact remains that Investigator Himan's actions did not violate any "clearly established statutory or constitutional rights of which a reasonable person would have known" by failing to do so. Simmons, 47 F.3d at 1385. There is little legal support for Plaintiffs' implicit a r g u m e n t that a "reasonable person" in Investigator Himan's position would have gone a r o u n d the prosecutor and directly provided exculpatory evidence to defendants or the grand ju ry. See Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (in determining w h e t h e r a right was clearly established, courts do not ordinarily need to "look beyond the d e c i s io n s of the Supreme Court, the [local Circuit] court of appeals and the highest court of t h e state in which the case arose . . . "). "[A] reasonable officer possessing the same i n f o r m a ti o n [as Investigator Himan] would have believed his conduct was lawful." Shaw, 13 F.3d at 801 (citation omitted).

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IV.

I N VE S TI G AT O R HIMAN'S ALLEGED "WITNESS INTIMIDATION" DID N O T AFFECT PLAINTIFFS' RIGHTS A l l e g a tio n s regarding Investigator Himan allegedly "ambushing" Duke students to get

statem ents regarding the events which occurred at 610 N. Buchanan on March 13, 2006, A m e n d e d Compl. ¶ 261, are on their face unrelated to the grand jury indictment. There are n o allegations that these interviews produced fraudulent statements or that such statements we re used to indict Plaintiffs. A. C r e a t i o n of Crimestoppers Fliers

C l ai m s that Investigator Himan conspired with David Addison to create C r i m e s t o p p er s posters do not support a cause of action under § 1983. Amended Compl. ¶ 1 6 0 . Claims based entirely on damage to reputation are not a constitutional deprivation, and are therefore not cognizable. Siegert v. Gilley, 500 U.S. 226, 233, 111 S. Ct. 1789, 114 L. E d . 2d 277 (1991) ("Defamation, by itself is an actionable tort under the laws of most states, but not a constitutional deprivation"). Moreover, Investigator Himan is entitled to qualified immunity for his alleged role in t h e preparation and distribution of the Crimestoppers flyers, as the distribution of such flyers s e e k i n g information about pending criminal investigations does not violate any "clearly e s t a b li s h e d statutory or constitutional rights of which a reasonable person would have kno wn ." Simmons, 47 F.3d at 1385 ("The law is well settled that a public official or e m p l o y ee is entitled to qualified immunity for civil damages unless his conduct violates

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clearly established statutory or constitutional rights of which a reasonable person would have k n o w n . " ) (citing Harlow, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d 396). There is little support for the contention that the preparation and distribution of these flyers is arg uab ly unconstitutional. For a police officer to lose his qualified immunity "the contours of the right must be s u f f i c ie n t l y clear that a reasonable official would understand that what he is doing violates t h a t right." Anderson, 483 U.S. at 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523. "The right must b e sufficiently particularized to put potential defendants on notice that their conduct is prob ably unlawful." Gooden, 954 F.2d at 968 (quotations omitted). Plaintiffs do not, and cann ot, point to any particularized right that Investigator Himan should have been on notice reg ard ing the use of such flyers. Moreover, Plaintiffs' allegations indicate that they would have been arrested and i n d i c te d regardless of the flyers. See, e.g., Amended Compl. ¶153 ("The Nifong Statements f o r e c lo s e d any objective search for truth, and committed Durham Police . . . to arrest three D u k e lacrosse players."). To the extent that the Crimestoppers flyers could have caused P l a i n t i f f s ' arrest, the theory of liability is so tenuous that Investigator Himan cannot be said to have been on notice that he was violating Plaintiffs' constitutional rights. See Simmons, 4 7 F.3d at 1385-86 (police officer was entitled to qualified immunity where it was not " ` c l ea r l y established' law that it is unconstitutional for a profile including race, along with other factors, to be included in a warrant application").
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B.

T h e Allegations of "Witness Tampering" Involving M oeze ldin E lm o sta fa Are Unrelated to Plaintiffs' Indictments

Investigator Himan arrested Moezeldin Elmostafa on a valid arrest warrant for larce ny. Amended Compl. ¶¶ 248, 252. Plaintiffs claim that the enforcement of this valid w a r r a n t was done to push Elmostafa to "change his previous statement exonerating Sel igm ann ." Amended Compl. ¶ 251-52. However there are no allegations that Elmostafa c h a n g e d his statement, or that any alleged "intimidation" of Elmostafa was a cause of Pla intif fs' indictments. C. T h e Allegations of "Witness Tampering" Involving Kim Pittman A r e Unrelated to The Indictments

Kim Pittman was arrested on a valid warrant for a parole violation. Amended Compl. ¶ 257. Plaintiffs allege that Ms. Pittman was told "that if she changed her categorical denial a n d timeline of events, she would be given a deal on her parole violation." Amended Compl. ¶ 258. However, Plaintiffs do not allege that Ms. Pittman recanted her March 22, 2006, f o r m a l written statement, or that she deliberately included false information. See Amended Co mp l. ¶¶ 256-59. The conclusory allegation that Investigator Himan and others obtained "false statem ents that they could use to manufacture probable cause, to secure indictments . . . ", A m e n d e d Compl. ¶ 353, provides nothing to support the claim that these actions actually c a u s e d Plaintiffs' indictments. (italics added)

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D.

T h e Allegations of "Witness Tampering" Involving Sgt. John S h elto n Are Unrelated to The Indictments

P l a i n ti f f s further allege that Investigator Himan and others "attempted to intimidate a n d discredit Sgt. Shelton . . . for reporting Mangum's recantation of her rape claim." A m e n d e d . Compl. ¶ 264. (italics added) Such conclusory allegations of alleged retaliation can not possibly be a cause of Plaintiffs' indictments. V. I N V E S T I G A T O R HIMAN CANNOT BE HELD LIABLE FOR CONSPIRACY U N D E R FEDERAL LAW A. T h e r e is no Constitutional Violation to Support The Federal C o n sp ir ac y Claims

Wh ere there has been "`no violation of a federal right, there is no basis for a section 1 9 8 3 action' or civil conspiracy under § 1983 . . . " Powell v. Keller, 5:03CV160-5-MU, 2 0 0 4 U.S. Dist. LEXIS 30266, at *12 (W.D.N.C. August 18, 2004) (quoting Clark v. Link, 8 5 5 F.2d 156, 161 (4th Cir. 1988)). Investigator Himan cannot have acted "in furtherance o f the conspiracy" to deprive Plaintiffs of their constitutional rights where he acted to fulfill his duties as a police officer to investigate claims of sexual assault and kidnaping. See, e.g., N.C .G.S .A. §§ 15A-31; see Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996) ( p l a in t i f f must show that the defendants acted "jointly in concert and that some overt act was d o n e in furtherance of the conspiracy which resulted in . . . deprivation of a constitutional righ t").

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B.

I n v e s t ig a t o r Himan's Actions Cannot be Based on an Improper D i s c r i m i n a to r y Animus When Duke Students Are Not a Protected Class

D u k e students are not members of a protected class for purposes of § 1985. See Bey v . Celebration Station, 3:02CV461, 2006 U.S. Dist. LEXIS 72479, at *9-10 (W.D.N.C. Sept. 2 9 , 2006) (noting that § 1985(2) and § 1985(3), which cover general equal protection v i o l a t i o n s , "require proof of a racial or otherwise class-based discriminatory animus behind t h e defendant's actions") (citations omitted). Unlike race, gender, national origin or religion, D u k e students do not belong to any single identifiable class that might be considered p r o t e c te d . "[N]either the Supreme Court nor the Fourth Circuit has identified any classes o t h e r than racial or religious classes." Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1 9 8 5 ) (military prisoners not "protected class"). See also Bray v. Alexandria Women's He alth Clinic, 506 U.S. 263, 269, 113 S. Ct. 1233, 122 L. Ed. 2d 640 (1993) (holding that wo me n seeking an abortion were not a protected class for purposes of § 1985(3)). As Plaintiffs are not part of such a protected class, Investigator Himan and other defe ndan ts cannot have, as a matter of law and logic, have acted with the requisite discriminat o ry purpose. See Fletcher v. Nebrasksa, 7:06cv5001, 2007 U.S. Dist. LEXIS 1 4 4 6 5 , at *5-6 (D. Neb. February 28, 2007) ("[a] review of the plaintiff's pleadings reveals t h a t the plaintiff has asserted no racial or other class-based invidiously discriminatory a n i m u s . Therefore, the plaintiff has not alleged a claim on which relief may be granted p u r s u a n t to 42 U.S.C. § 1985(3)."). The Supreme Court has stated that "discriminatory
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p u r p o s e . . . implies more than intent as volition or intent as awareness of the consequences." P e r s o n n e l Adm'r v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 870 (1979) (internal q u o t a t io n marks omitted). "[I]t implies that the decisionmaker . . . selected or reaffirmed a p a r t ic u l a r course of action at least in part `because of,' not merely `in spite of,' its adverse effe cts upon an identifiable group." Id. The required "requisite intent in this context is more t h a n simple awareness of the course of action being taken." Id. P l a i n ti f f s baldly assert that "Defendants engaged in overt acts that were motivated by i n v i d io u s racial animus, Amended Compl. ¶ 463, but do not allege that Plaintiffs are part of a protected class. An allegation of generalized racial animus is insufficient where the elem ents of a claim for conspiracy in violation of § 1985 "require proof of a racial or o t h e r w i s e class-based discriminatory animus behind the defendant's actions". Bey, 2006 U.S. Dist. LEXIS 72479, at *9-10 (italics added). C. T h e r e Were Valid and Extant Criminal Charges Against M oeze ldin Elmostafa And Kim Pittman, Therefore Plaintiffs C a n n o t Establish "Force and Intimidation" For Purposes of § 1985(2)

A claim for conspiracy in violation of § 1985 requires "two or more persons . . . c o n s p i r e to deter, by force, intimidation, or threat, any party or witness . . . from attending s u c h court, or from testifying to any matter pending therein, freely, fully, and truthfully . . . " § 1985(2).4 This standard cannot be met here, where the witnesses, Moezeldin Elmostafa Claim s under § 1985(2) are intended "to protect against direct violations of a party o r witness's right to testify in federal court." Dooley v. United Technologies Corp., No. 91KCBC:242154 4

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a n d Kim Pittman, were arrested on a valid warrants. Amended Compl. ¶¶ 248, 252, 257. I n v e s ti g a t io n and arrests for "legal claims possessing a reasonable basis in law and fact" such a s these "do not constitute the `force or intimidation' necessary to satisfy [a claim for c o n s p i ra c y pursuant to] § 1985(2)." Raiser v. Kono, No. 06-4243, 2007 U.S. App. LEXIS 1 6 1 2 0 , at * 12 (10th Cir. July 5, 2007) (issuance of a bench warrant as a result of defendant's failure to appear "cannot support a § 1985 claim") (citing Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1124 (10th Cir. 2007)). VI. I N V E S TI G AT O R HIMAN FULFILLED HIS DUTY AS A PUBLIC OFFICIAL A N D POLICE OFFICER UNDER NORTH CAROLINA LAW AND T H E R E F O R E CANNOT BE HELD LIABLE ON PLAINTIFFS' STATE LAW C L A IM S U n d e r North Carolina law, a public official performing discretionary acts can be liable f o r wrongdoing only (1) if the wrongdoing occurs outside the scope of official authority or if the conduct is (2) intended to be prejudicial or injurious to the Plaintiff or (3) malicious or corru pt. David A. Logan and Wayne A. Logan, North Carolina Torts § 107 (2d Ed. 2004); M o o r e v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996). As a police officer employed by a North Carolina municipality engaged in the i n v e s ti g a t io n of an alleged crime, Investigator Himan is a public official for purposes of the pub lic official immunity doctrine. See Campbell v. Anderson, 156 N.C. App. 371, 376 576 S . E . 2 d 726, 730 (2003). The law presumes that "in the performance of his official duties [the 2449, 1992 U.S. Dist. LEXIS 8653, at *37 (D.C. Cir. June 17, 1992) (quotations omitted). As this matter pertains to a state prosecution, § 1985(2) is inapplicable.
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officer] `acts fairly, impartially, and in good faith and in the exercise of sound judgment or d i s c re t i o n , for the purpose of promoting the public good and protecting the public interest." G r e e n v. Town of Valdese, 306 N.C. 79, 82, 291 S.E.2d 630, 632 (1982). It is the Plaintiffs' b u r d e n to overcome this presumption and "make a prima facie showing that the official's a c t io n s (under the color of state authority) are sufficient to pierce the cloak of official im mu nity." Moore, 124 N.C. App. at 42, 476 S.E.2d at 421. Plaintiffs fail to satisfy this bur den and, as such, their state law claims must be dismissed. Plaintiffs' claims of negligence (Count 16) and negligent infliction of emotional d i s t r e s s (Count 18) must be dismissed, as such negligent conduct fails to convey the intent, m ali ce or corruption necessary to overcome public official immunity. P l a i n t i f f s ' remaining state law claims, for malicious prosecution (Count 13), common l a w obstruction of justice (Count 14) and intentional infliction of emotional distress (Count 1 5 ) likewise fail to overcome Investigator Himan's absolute immunity. Plaintiffs' allegations d o not create a plausible inference that Investigator Himan acted outside the scope of his emp loymen t, acted corruptly (e.g., for personal benefit), or that he "intended his actions to b e prejudicial or injurious" to Plaintiffs. Marlowe v. Piner, 119 N.C. App. 125, 128, 458 S . E . 2 d 220, 223 (1995). Investigator Himan's duty as a police officer is to investigate claims o f sexual assault and kidnaping made by anyone within the jurisdiction. N .C .G .S .A . §§ 15A-31. See, e.g.,

This is precisely what Plaintiffs' allegations show he did.

A c c o r d i n g to the Amended Complaint, Investigator Himan was assigned to the investigation
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b y Sargent Gottlieb and was told to report both to District Attorney Nifong and up the D u r h a m Police chain of command. Amended Compl. ¶¶ 24, 84, 133, 136-37. Investigator Him an did so, providing all evidence he uncovered to District Attorney Nifong. Amended C o m p l . ¶¶ 24, 84, 133, 136-37. Plaintiffs detail a host of alleged improper actions Investigator Himan took during the c o u r s e of the investigation, but they fall short of pleading specific facts to support a claim t h a t he acted outside the scope of his authority, was corrupt or "intended . . . to be prejudicial o r injurious" to Plaintiffs. Marlowe, 119 N.C. App. at 128, 458 S.E.2d at 223 (granting summ ary judgment dismissing claims against deputy sheriff in his individual capacity for f a l s e imprisonment and false arrest based on public official immunity where evidence s h o w e d that "[a]t most" plaintiff had presented evidence showing that defendant "negligently b e l i ev e d he had probable cause to arrest plaintiffs"); see also Jetton v. Caldwell County B o a r d of Education, No. COA05-1389, 2007 N.C. App. LEXIS 1699, at *17-18 (August 7, 2 0 0 7 ) ("While Defendants may not have always acted in a professional manner, or treated P l a i n ti f f with patience, respect or kindness, there is no evidence they intended to hurt P l a i n ti f f . Any alleged harm resulting to Plaintiff from Defendants' allegedly improper con duc t was simply a collateral consequence").

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B.

I n v e s t ig a t o r Himan Did Not Owe Plaintiffs a Duty For Purposes of T h ei r Negligence Claim

Even if Plaintiffs' negligence claims against Investigator Himan somehow pierced the c l o a k of public official immunity, they still fail. Actionable negligence occurs only where there is "a failure to exercise proper care in the performance of some legal duty which the d e f e n d a n t owed the plaintiff, under the circumstances they were placed." Wood v. Guilford Co unty , 355 N.C. 161, 166, 558 S.E.2d 490, 490 (2002) (quoting Mattingly v. N.C.R.R. Co., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961)). No reported North Carolina decision addresses the question whether a law e n f o r c e m e n t officer's alleged negligence in the course of the investigation of a crime is an action able tort. How e v e r other jurisdictions have held that no such cause of action exists. S e e Fondren v. Klickitat County, 905 P.2d 928 (Wash. App. 1995) (a claim for negligent i n v e s ti g a t io n is not cognizable under Washington law); Wimer v. State of Idaho, 841 P.2d 4 5 3 (Idaho 1993) (holding that a claim for negligent investigation does not exist and stating t h a t to hold otherwise would "impair vigorous prosecution and have a chilling effect on law enforce ment"); Lewis v. McDorman, 820 F. Supp. 1001 (W.D. Va. 1992), aff'd, 28 F.3d 1210 (4th 1994) (police officers owe no duty of reasonable care in conducting investigations). As a police officer for a municipal law enforcement agency, Investigator Himan owed a duty to t h e public, not Plaintiffs in particular. By investigating Mangum's claims, including

s e a r c h in g for suspects and physical evidence, Investigator Himan was fulfilling this duty.

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T here is no legal basis for Plaintiffs' allegation that he owed them a separate duty in con duc ting his investigation. C. I n v e s t ig a t o r Himan Did Not Initiate The Prosecution For Purposes of the Malicious Prosecution Claim

I n v e s t i g a t o r Himan cannot be said to have "initiated" the criminal action against P l a i n t i f f s , and carried out the prosecution, when his actions were performed at the behest of, a n d under the direction of, District Attorney Nifong. See, e.g., Shillington v. K-Mart Corp., 1 0 2 N.C . App. 187, 402 S.E.2d 155 (1991) (malicious prosecution claim was properly d i s m i ss e d where defendant corporation's agents provided information to police officer that l e d to plaintiff's arrest, but did not arrest plaintiff, press charges or appear before the ma gistr ate). A valid state law claim of malicious prosecution has four elements: "`(1) the d e f e n d a n t initiated the earlier proceeding; (2) malice on the part of the defendant in doing s o ; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination o f the earlier proceeding in favor of the plaintiff.'" Beroth Oil Co. v. Whiteheart, 173 N.C. A p p . 89, 99, 618 S.E.2d 739, 747 (2005) (quoting Best v. Duke Univ., 337 N.C. 742, 749, 4 4 8 S.E. 2d 506, 510 (1994), appeal dismissed, disc. rev. denied, 360 N.C. 531, 448 S.E.2d 506 (2006)). A c c o r d i n g to the Amended Complaint, Investigator Himan was assigned to this matter b y Sgt. Gottlieb. Amended Compl. ¶¶ 24, 84. Investigator Himan investigated the matter

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a n d provided all evidence to the district attorney who made the decision to prosecute. A m e n d e d Compl. ¶ 137. As a law enforcement officer, Investigator Himan had "no i n d e p e n d e n t authority to make prosecutorial decisions," Sturgill, 121 N.C. App. at 638, 469 S . E . 2 d at 562, and therefore should not be held liable for how these decisions were made. S e e , e.g., Eubanks v. Gerwen, 40 F.3d 1157, 1160-61 (11th Cir. 1994) (affirming summary j u d g m e n t for arresting officers on dismissal of claim for malicious prosecution in violation o f § 1983 where it was "clear that none of the defendants were responsible for the decision to prosecute, and none of them improperly influenced the decision to prosecute."). No North C a r o l i n a decision has held that a police officer initiates a prosecution under such circu ms tanc es. D. I n v e s t ig a t o r Himan's Alleged Actions Do Not Support A Claim For O b s t r u c t i o n of Justice

I n v e s ti g a t o r Himan's actions, as alleged in the Amended Complaint, could not have i m p e d ed or hindered Plaintiffs' defense of their claims where District Attorney Nifong d i r e c te d the investigation and was responsible for the prosecution. Thus, Investigator H i m a n ' s actions cannot be said to have prevented, obstructed, impeded or hindered public j u s ti c e . See, e.g., Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S . E . 2 d 20, 30 (2003) (affirming summary judgment on obstruction of justice claim where " p l a in t i f f presented no evidence that her case was in some way judicially prevented, o b s t r u ct e d , impeded or hindered by the acts of defendants"). Investigator Himan did not

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contro l, or attempt to control, Plaintiffs' prosecution or the efforts to seek indictments against t he m . See, e.g., In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983) (finding judge remo vable for obstruction of justice where he unsuccessfully called on another judge to delay g r a n d jury investigation); State v. Rogers, 68 N.C. App. 358, 387-88, 315 S.E.2d 492, 512-13 ( 1 9 8 4 ) (finding sufficient evidence to sustain conviction of attorney for attempting to interfere with a witness where the attorney engaged in overt acts designed to induce witness to leave court so that attorney could obtain a dismissal of the charges against his client). The fac ts as alleged by Plaintiffs do not support such a claim. E. I n v e s t ig a t o r Himan's Alleged Actions do Not Support a Claim of I n t e n t i o n a l Infliction of Emotional Distress

I n v e s ti g a t o r Himan's alleged "intimidation" of witnesses and manipulation of i d e nt i f ic a t io n procedures "with the intention of perpetuating criminal proceedings against Plaintif fs", Amended Compl. ¶ 511, does not qualify as sufficiently extreme or outrageous con duc t to support a claim of intentional infliction of emotional distress. To establish a valid claim for intentional infliction of emotional distress, a plaintiff m u s t allege: (1) extreme and outrageous conduct; (2) which is intended to cause and does c a u s e ; (3) severe and disabling emotional distress. Dickens v. Puryear, 276 S.E.2d 325, 335 ( N .C . 1981). For conduct to qualify, it must be "so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, a n d utterly intolerable in a civilized community. Bradley v. Lowe's Cos., 3:05CV488-MU,

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2 0 0 7 U.S. Dist. LEXIS 69872, at *10 (W.D.N.C. Sept. 20, 2007) (quoting Briggs v. R o s e n t h a l, 327 S.E.2d 308, 311 (N.C. App. 1985). Plaintiffs must allege facts that, if later p r o v e d , "exceed all bounds of decency," Peck v. Town of Lake Lure, 2001 U.S. Dist. LEXIS 1 3 1 7 9 , * 15 (W.D.N.C. Feb. 23, 2001) (internal quotations omitted), or are "regarded as a t r o c i o u s , and utterly intolerable in a civilized community." Id. (quoting Wagoner v. Elkin C i t y School Bd. of Educ., 113 N.C. App. 579, 440 S.E.2d 119, 123 (N.C. Ct. App. 1994). Plaintiffs' alleged behavior is not sufficiently extreme or atrocious. Plaintiffs do not a l l eg e that Investigator Himan threatened or used force against them, only that he aggr essive ly investigated M s. Mangum's claims. See, e.g., Dickens v. Puryear, 302 N.C. 4 3 7 , 447 276 S.E.2d 325, 332 (1981) (valid claim of intentional infliction of emotional d i s t r e s s where defendants threatened plaintiff's life, pointed a gun between his eyes, beat him with a nightstick and threatened him with castration). It does not compare with a husband's k n o w i n g of and intentionally refusing to pay a tax deficiency as part of a separation agree men t, resulting in foreclosure of the wife's home, Stanback v. Stanback, 297 N.C. 181, 2 5 4 S.E.2d 611 (1979), or with a private citizen placing posters of plaintiff in public places, a p p r o a c h in g other citizens, including teachers and students in high school within the j u r is d i c ti o n where defendant was a superintendent, and reading or showing portions of papers a b o u t the plaintiff's nolo contendere plea while a college student decades earlier. Woodruff v . Miller, 64 N.C. App. 364, 307 S.E.2d 176 (1983).

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F.

P la in tiffs Do Not State a Valid State Law Claim For Civil C o n s p i r a c y Where Investigator Himan's Actions Were a Good F a i t h Attempt to Fulfill His Duties

I n v e s ti g a t o r Himan cannot be part of a conspiracy to do an unlawful act or to do a lawful act in an unlawful way by simply fulfilling his duties as a police officer. As detailed a b o v e , Investigator Himan investigated the criminal charges against Plaintiffs and presented all evidence, including purportedly exculpatory evidence, to prosecutors. Investigator Himan f u l f il l e d his duty as a police officer to investigate claims of sexual assault and kidnaping m a d e by anyone within the jurisdiction. See, e.g., N.C.G.S.A. §§ 15A-31. As a law e n f o r c e m e n t officer, Investigator Himan has "no independent authority to make prosecutorial d e c i s io n s . " Sturgill, 121 N.C. App. at 638, 469 S.E.2d at 562. C O N C L U S IO N T h e allegations in Plaintiffs' Amended Complaint, once stripped of their hyperbole a n d generalized assertions of bad faith, allege that Investigator Himan was assigned to inves tigate an allegation of rape, participated in the investigation consistent with his duty as a law enforcement officer and then turned over all evidence he uncovered to District A t t o r n e y Nifong. Although Plaintiffs detail a host of purportedly improper actions by I n v e s ti g a t o r Himan, they do not make specific allegations that would support a viable cause of action against him under federal or state law.

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T h i s the 15th day of January, 2008.

KE NN ON , CRAVER, BELO, CRAIG & MCKEE, PLLC B y: /s/ Joel M . Craig North Carolina State Bar No. 9179 Atto rneys for Defendant Benjamin Himan 4 0 1 1 University Drive, Suite 300 P . O . Box 51579 D u r h a m , NC 27717-1579 ( 9 1 9 ) 490-0500 j c r a ig @ k e n n o n c r a v e r . c o m

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C E R T IF I CA T E OF SERVICE T h e undersigned attorney hereby certifies that I electronically filed the foregoing D e f e n d a n t Benjamin Himan's Motion to Dismiss with the Clerk of Court using the CM /EC F system which will send notification of such filing to the following: Christopher N. Manning Rob ert M. Cary Cha rles Davant, IV Brend an V. Sullivan, Jr. W i l li am s & Connolly LLP 7 2 5 12 th St. N.W. W a s h i n g t o n , DC 20005 A t t o r n e ys for Plaintiffs Collin Finnerty and David F. Evans Da vid S. Rudolf R u d o l f , Widenhouse & Fialko 312 W. Franklin St. C h a p e l Hill, NC 27516 A t t o r n e y for Plaintiff Reade Seligmann James B. Craven, III P . O . Box 1366 D u r h a m , NC 27702 A t t o r n e y for Defendant Michael B. Nifong R obe rt James King, III Ke arns Davis B r o o ks , Pierece, McClendon, Humphrey & Leonard, LLP P . O . Box 26000 G r e e n s b o r o , NC 27420-6000 A t t o r n e y s for Defendants DNA Security, Inc. and Richard Clark N i c h o l a s J. Sanservino Robert A. Sar Og letre e Deakins Nash Smoak & Stewart, P.C. P.O. Box 31608 R a l e i g h , NC 27622 A t t o r n e ys for DNA Security, Inc.
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Regin a ld B. Gillespie, Jr. Faiso n & Gillespie P . O. Box 51729 D u r h a m , NC 27717-1729 A t t o r n e y for Defendant City of Durham, North Carolina P a t r ic i a P. Kerner T r o ut m a n Sanders, LLP P . O . Box 1389 R a l e i g h , NC 27602-1389 A t t o r n e y for Defendants Beverly Council, Jeff Lamb, Michael Ripberger, Ronald Hodge, Steven W. Chalmers and Patrick Baker Jam es B. Maxwell M axw ell, Freeman & Bowman, P.A. P.O. Box 52396 D u r h a m , NC 27717-2396 A t t o r n e y for Defendant David Addison E dw in M. Speas, Jr. P o yn e r & Spruill LLP P . O . Box 10096 R a l e i g h , NC 27605-0096 A t t o r n e y for Defendant Mark Gottlieb T h i s the 15th day of January, 2008. KE NN ON , CRAVER, BELO, CRAIG & MCKEE, PLLC B y: /s/ Joel M . Craig North Carolina State Bar No. 9179 Atto rneys for Defendant Benjamin Himan 4011 University Drive, Suite 300 P . O . Box 51579 D u r h a m , NC 27717-1579 ( 9 1 9 ) 490-0500 j c r a ig @ k e n n o n c r a v e r . c o m

KCBC:242154

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