MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 129

Response BRIEF re #128 Order Requesting Supplemental Briefs by Plaintiffs RYAN MCFADYEN, MATTHEW WILSON, BRECK ARCHER. (EKSTRAND, ROBERT)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al., Plaintiffs v. DUKE UNIVERSITY, et al., Defendants Civil Action No. 1:07-CV-953

SUPPLEMENTAL BRIEF SUPPORTING PLAINTIFFS'OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS THE FIRST AMENDED COMPLAINT

Dated: July 14, 2009

EKSTRAND & EKSTRAND LLP

Robert C. Ekstrand (NC Bar #26673) Stefanie A. Sparks 811 Ninth Street Durham, NC E-mail: [e-mail] E-mail: [e-mail] Telephone: [phone] Counsel for Plaintiffs Ryan McFadyen, Matthew Wilson, and Breck Archer

Student Counsel

THE MATTER BEFORE THE COURT The individuals and entities responsible for subjecting Plaintiffs and their teammates to one of the most chilling abuses of power in modern history ask this Court to spare them from the "burdens of discovery." For support, they rely upon Ashcroft v. Iqbal, 129 S. Ct. 1937 (May 18, 2009). Their arguments are meritless. Unlike the lone allegation of unlawful conduct at issue in Iqbal, Plaintiffs' Amended Complaint ("AC") pleads (literally) thousands of detailed, specific facts that show "more than a sheer possibility," that each Defendant acted unlawfully. Furthermore, Defendants attempt to liken their own responses to Mangum's allegations to the response of the Attorney General and FBI Director to the devastating terrorist attacks of September 11, 2001. However, they fail to account for the "obvious" difference between the two: the attacks of September 11th actually happened, and these Defendants knew that the "attack" Mangum alleged was a lie.
I.

IQBAL REQUIRES PLAINTIFFS TO ALLEGE "MORE THAN A SHEER POSSIBILITY" THAT A DEFENDANT'S CONDUCT WAS UNLAWFUL.

Iqbal explicitly confirmed that Rule 8 "does not require `detailed factual allegations.'" Iqbal, 129 S. Ct. at 1949. Instead, Rule 8 merely requires a plaintiff to allege "more than an unadorned, the-defendant-harmed-me accusation." Id. To survive a motion to dismiss, plaintiff's complaint must "state a claim for relief that is plausible on its face," that is plaintiff's factual allegations must show "more than a sheer possibility that a defendant acted unlawfully." Id. Iqbal verified that courts must assume the truth of the complaint's factual allegations and then test the sufficiency of those facts against the substantive law of the cause of action at issue, which is a "context-specific" task requiring courts to draw upon their "judicial experience and common sense." Id. at 1950. In Ashcroft the Court applied those principles to a prisoner-complaint filed by Javaid Iqbal against multiple defendants, including former Attorney General John D. Ashcroft and Director of the Federal Bureau of Investigation ("FBI"), Robert S. Mueller, III. The allegations Iqbal directed to Ashcroft and Mueller were exceptionally sparse, particularly in

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light of the fact that Iqbal asserted a First Amendment Bivens claim against the nation's top law enforcement officials, claiming they had purposely discriminated against him because of his race, religion, or national origin. The substantive law of that claim required Iqbal to show that Ashcroft and Mueller's purpose in enacting the policy was to treat Iqbal differently because of his race, religion or national origin. Id. at 1948. The Court emphasized, "it is important to recall that [Iqbal's]... claims against [Ashcroft and Mueller] rest solely on their ostensible `policy of holding post-September-11th detainees' in the ADMAX SHU once they were categorized as `of high interest'" by other defendants. Id. at 1952. Thus, the Court held that the substantive law governing Iqbal's Bivens claim required Iqbal to plead:
facts plausibly showing that [Ashcroft and Mueller] purposefully adopted a policy of classifying post-September-11 detainees as "of high interest" because of their race, religion, or national origin.

Id. (emphasis added). However, Iqbal's only factual allegation supporting his purposeful discrimination claim was the fact that Ashcroft and Mueller "adopt[ed] a policy approving `restrictive conditions of confinement' for post-September 11 detainees until they were `cleared' by the FBI." Id. The Court held:
Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. [Iqbal] does not argue, nor can he, that such a motive would violate petitioners' constitutional obligations.

Id. As a result, the Court dismissed the purposeful discrimination claim against Ashcroft and Mueller. The Court reasoned that Iqbal needed "to allege more by way of factual content" to make a plausible showing that Ashcroft and Muller were motivated by a desire to discriminate on the basis of race, religion, or national origin, as opposed to the "obvious alternative explanation" that Ashcroft and Mueller's facially lawful policy was motivated by the legitimate need to respond to the "devastating terrorist attacks" of

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September 11, and legitimate fears that other terrorist attacks were imminent. Id. at 195152.
A. Defendants' "Alternative Explanations" are--Themselves--Implausible and Should Not Survive the Application of the Court's Judicial Experience and Common Sense.

Every Defendant has seized upon Iqbal's recognition of the "obvious alternative explanation" for Ashcroft and Muller's allegedly purposefully discriminatory policy. They each employ a variation on the theme that their misconduct "can be readily explained by the legitimate desire to investigate the alleged rape of Crystal Mangum." Gottlieb, Himan, and City Supp. Br. 4 (Doc. #123) ("City Brief"). The City Brief also presents the alternative explanation that Defendants Gottlieb and Himan were simply "police doing the best they could to faithfully execute their investigatory duties under trying circumstances." Id. at 2. However, stigmatizing Plaintiffs publicly, coercing false statements, retaliating against Plaintiffs' for their exercise of their constitutional rights; fabricating warrant affidavits, forensic medical records, and identification evidence; and concealing exculpatory testimonial, medical, DNA, and identification evidence (to name only a few) is a far cry from "faithfully" executing investigatory duties.1 Plaintiffs allege that the Defendants committed theses wrongs knowing that no "attack" occurred. Plaintiffs allege that, no later than the Joint Command meeting on March 29th, Defendants had learned that the SBI's testing of the rape kit contradicted Mangum's allegations, that Mangum's descriptions and subsequent identification procedures ruled out Plaintiffs and their teammates as suspects, and that the medical evidence was not consistent with a violent gang-rape and in fact that the Sexual Assault Examination (SAE) was abandoned because the physician conducting the SAE did not believe Mangum's claims. AC ¶ 631; see also id. ¶¶ 293-309, 363-81, 617-26. Nonetheless,

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See AC ¶¶ 414-44, 500-58, 591-616, 641-54, 660-65, 666-75, 676-87, 746-78, 779-99.

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the Durham Police Supervisors claim in their supplemental brief that "the facts alleged show a legitimate law enforcement basis for continued investigation after May [sic] 29, and any inference that the evidence that day demanded no further investigation is not plausible." Durham Police Supervising Defs. Supp. Br. 16 (Doc. #122) ("City Supervisors Brief"). Duke University Defendants argue that "the far more plausible explanation" for Plaintiffs' detailed factual allegations that among others include Duke's concealment of its police department's jurisdictional control of the investigation and its power to intervene to prevent the known wrongs to be committed against and constitutional violations of Plaintiffs and their teammates, AC ¶¶ 456-65, Duke's fabrication of false and misleading police reports, id. ¶¶ 468-75, Duke's public stigmatization of Plaintiffs and their teammates, id. ¶¶ 528-558, and fabrication of medical evidence, id. ¶¶ 779-99, is "that Duke University and its employees were properly responding to the inquiries of a facially lawful criminal investigation conducted by the Durham police and the prosecutor." Duke Supp. Br. 6 (Doc. #120) ("Duke Brief"). Defendants are grasping at smoke. In fact, the more "plausible alternative explanation" for Duke's conduct, for example, is that their actions were part of a larger conspiracy to convict Plaintiffs and their teammates and alternative plan to avoid the costly burden of discovery and judgments in civil actions, which they knew Plaintiffs and their teammates would bring against the University. AC ¶¶ 829, 893, 896. Duke has filed documents lending to prove the latter motive in this Court showing that as of March 30, 2006, following their attendance at the March 29th Joint Command meeting described above, Duke notified its insurance carrier of Plaintiffs' claims attaching "numerous articles from the press regarding the allegations and Duke's subsequent investigation into the allegations." Complaint, Duke Univ. v. Nat'l Union Fire Ins. Co., No. 1:08-cv-00854 at 6 (Doc. #1) (M.D.N.C. 2008) (emphasis added).

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Even if Defendants' alternative explanations were relevant to Plaintiffs' causes of action (which they are not), all of them fail because "legitimate alternative explanations" do not include "implausible alternate realities." Defendants liken the circumstances they faced to those Ashcroft and Mueller confronted, which the Court describes:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim--Osama bin Laden--and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. . . . [T]he arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that "obvious alternative explanation" for the arrests and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion....All [the complaint] plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Iqbal, 129 S. Ct. at 1951-52. Defendants will not get far (factually, legally, or normatively)

by drawing analogies between an "attack" they knew did not occur and the tragic events of September 11th, or by likening themselves to noble Americans who risked much to respond to the horrors that unfolded on that day. Even where their "alternative explanations" are relevant in the context of a cause of action, their "alternative explanations" should not survive application of the Court's "judicial experience and common sense."
B. Iqbal's Lone Allegation of Misconduct Against Ashcroft and Mueller is Dwarfed by Plaintiffs' 483 Pages and Exhibits of Detailed Allegations.

Iqbal's Complaint pled only one factual allegation against Ashcroft and Mueller, and, while Defendants assert that Plaintiffs' AC should be dismissed for the "same reasons" the Court dismissed Iqbal's Complaint, Defendants assiduously avoid any direct comparison of the two. Indeed, while some Defendants employ Iqbal's Complaint as an

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exhibit to their Supplemental Briefs in the companion cases, they did not do so when attacking Plaintiffs' 483-page AC in this case.2 And for good reason. As documented below, Plaintiffs' 483-page Amended Complaint and Exhibits (including 15 video clips, 4 audio clips, 9 pictures, 1 chart, and 37 pages of exhibits) plead detailed, factual allegations that show more than a "sheer possibility" that each Defendant's conduct was unlawful. II. PLAINTIFFS ALLEGE FACTS SHOWING MORE THAN A "SHEER POSSIBILITY" THAT THE DEFENDANTS ACTED UNLAWFULLY.
A. Plaintiffs Allege Facts Showing More than a "Sheer Possibility" that the Chairman Acted Unlawfully.

By March 25, 2006, Robert K. Steel ("the Chairman") had been presented with evidence demonstrating that "Mangum was a deeply disturbed young woman who exhibited signs of psychosis" on the night in question and that "her accusations were false," AC ¶ 445; that Gottlieb was a documented rogue cop who, after having been pulled from the patrol beat, now had "a vendetta in response to the Gottlieb Dossier" (a report that detailed his increasing misconduct in matters involving Duke Students, prepared on behalf of Duke Students for purposes of removing him from the beat). Id. ¶ 446.3 The Chairman was aware that Nifong was embroiled in a hotly contested election in which he was trailing his bitter rival by a substantial margin, and that he had already signaled that he was "preparing to ride the case into office." Id. ¶¶ 447, 478-95. The Chairman was cognizant of the fact that "Addison was lying publicly about the evidence." Id. ¶448. The Chairman was aware that the investigation belonged to the Duke University Police Department ("DUPD"). Id. ¶ 449.4 "The Chairman knew that, if the public perceived Duke
See, e.g., Supervisory Defs. Supp. Br., Evans v. City of Durham, No. 1:07-cv-00739 Exh. 1 (Doc. #99) (M.D.N.C. 2007); Durham Supervisors Supp. Br., Carrington v. Duke Univ., No. 1:08-cv00119 Exh. 1 (Doc. #134) (M.D.N.C. 2008).
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See also id. ¶¶ 171-78, 460.

See also id. I. THE SECRET: THIS WAS THE DUKE POLICE DEPARTMENT'S CASE, ¶¶ 82-106.

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abandoning the Plaintiffs, the public would conclude that Duke knew they were guilty." Id. ¶ 450. Knowing this and other information, AC ¶¶ 256-61, 321-32, the Chairman formed a Crisis Management Team ("CMT") of senior Duke Officials for the purpose of turning Duke University, the institution, its employees, and its resources, against Plaintiffs and their teammates who were defending false accusations of the most serious kind. Id. ¶¶ 8586, 454, 457-59. The CMT originally consisted of Defendants Burness, Brodhead, Trask, Lange, and Moneta. Id. ¶ 459. Knowing the proof of their innocence, the Chairman stated that he had determined that it would be "best for Duke" if Plaintiffs and or their teammates were charged and tried on Mangum's false accusations. Id. ¶¶ 85, 332, 452-53, 638, 862. In furtherance of what the Chairman believed was "best for Duke," the Chairman issued a directive (the "Chairman's Directive" AC ¶¶ 445-55) to employ the University in the Conspiracy to Convict and its constituent conspiracies. Id. The Chairman rejected pleas for Duke to show some measure of support for the students or not, at least, to impugn the innocent student being framed in plain view, explaining that, "sometimes individuals have to be sacrificed for the good of the Organization." Id. ¶ 452. The Directive was, in the words of one who received it, "to f***k those lacrosse players." Id. ¶ 455. The original CMT members--Brodhead, Burness, Trask, Lange, and Moneta--agreed to pursue the Chairman's Directive through their offices, their own conduct and their subordinates. Burness agreed to utilize his office, other CMT members, and subordinates to stigmatize Plaintiffs in the local and national media. Trask agreed to utilize his institutional control over the DUPD to ensure the Department abandoned their investigation of Mangum's claims, delegated their authority to Gottlieb, and otherwise carried out the Chairman's Directive. Brodhead agreed to use the Office of the President and the integrity of the University in furtherance of the Chairman's Directive, personally and through AD-Hoc Committee would create to impeach the character of Plaintiffs and

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their teammates. Lange agreed to use his position over the Duke Faculty in furtherance of the Chairman's Directive. Moneta agreed to aid police access to students' federally protected information including Duke Card Accounts and electronically stored communications (i.e. emails) protected by the Electronically Stored Communications Act, and to aid in impeaching Plaintiffs' character through Brodhead's Committees. Shortly after the first CMT meeting, when it became clear that DNA evidence would not be available and Nifong would have to rely on Duke University Health Systems, Inc. ("DUHS") Sexual Assault Nurse Examiner ("SANE") Tara Levicy, the Chairman brought the Chancellor of DUHS, Victor Dzau, into the CMT on a permanent basis. In that role, Dzau agreed to put Duke University Medical Center ("DUMC"), and, in particular, Defendant Levicy, into the service of the Chairman's Directive. The University conducted itself through that structure and those five members of the CMT, at Steel's direction, throughout the ordeal. As a result, the University's acts in furtherance of Conspiracy to Convict appeared in five discrete dimensions, as documented in the Amended Complaint, explained in the following pages, and shown in the diagram below.
B. Plaintiffs Allege Facts Showing More Than a "Sheer Possibility" that the Duke Police Defendants Acted Unlawfully Under CMT Defendant Trask's Direction in Furtherance of the Chairman's Directive.

The Amended Complaint pleads facts showing that, pursuant to the Chairman's Directive, Trask directed the Duke University Police Defendants to act unlawfully, in furtherance of the Conspiracy to Convict. Plaintiffs' allegations show that the Chairman, through Trask, directed the Duke Police Department not to act to intervene to prevent the ongoing Conspiracy to Convict or any of its constituent conspiracies, despite their duty and opportunity to do so. See, e.g., id. ¶¶ 85-86, 457-58, 461. To conceal the authority of the Duke Police to intervene, President Brodhead, other CMT members, and Duke Police Supervisors issued numerous false public statements asserting that the Duke Police had no

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power to investigate Mangum's false accusations, when, in fact, the Duke Police Department had the primary responsibility for doing so. AC ¶¶ 461-65, 476-77; see also id. 82-106, Attach. 1-3. Next, in furtherance of the Chairman's directive, Trask caused those Duke Police Officers who interacted with and observed Mangum at the hospital to produce fraudulent police reports that concealed their exculpatory observations of Mangum during the early morning hours of March 14th and fabricated inculpatory observations. Id. ¶¶ 46875. As a result, the Duke Officers' statements all (1) concealed their original roles as investigators (describing themselves as mere bystander witnesses), Id. ¶ 467; "[c]oncealed the fact that the Duke Police had jurisdiction over the investigation," id. ¶ 467(A); "[c]oncealed the fact that the investigation was a Duke Police investigation, until Duke abdicated its jurisdictional responsibility to initiate and conclude an investigation of Mangum's allegations, id. ¶ 467(B); "[c]onceal their observations during their interactions with Mangum that tended to prove Mangum's claim was a fraud, id. ¶ 467(C); and described Mangum's behavior so as "to (falsely) enhance the reliability of Mangum's claim," id. ¶ 467(D). Specifically, the Duke officers' fabricated reports concealed their recorded recollections of Mangum's bizarre behavior, id. ¶ 256; Sgt. Shelton's conclusions that he thought Mangum was lying, AC ¶ 472, and that "she was exhibiting signs of a serious mental illness requiring emergency psychiatric intervention, id. ¶ 256; Inv. B.S. Jones's conclusions that Mangum's claims were false and that "she determined to rule Mangum's allegations `unsubstantiated,'" AC ¶ 333; Officer Day's observations that many of the officers who interacted with Mangum believed her claims were a hoax, id. ¶ 475, and evidence that Mangum's false accusation was a reaction to a "police radio exchange ordering a patrol unit to Mangum's house to see if her children were alone [and if so, report her to DSS], the suggestive questioning that prompted the half-hearted false claim of rape, the specious circumstances surrounding it, Mangum's troubled psychiatric history, revealed at Durham Center Access, including Mangum's [prior] involuntary commitments." Id. ¶¶ 257-61. Further, the Amended Complaint shows that two of the

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officers who wrote these fabricated statements "changed [their accounts] significantly when they left the Duke Police Department" because they were no longer subject to the Chairman's Directive. Id. ¶ 467(E). The Duke Defendants offers an "alternative explanation" for the fabrication of police reports to obtain wrongful convictions and avoid liability in a civil rights action: these facts, they assert, "show only that the two forces [Duke and Durham police departments] were occasionally, and entirely properly, exchanging information about the case." Duke Br. at 10. Defendants are free to argue that alternate explanation to a jury. Taking the facts in the Amended Complaint as true, there is more than a "sheer possibility" that the Duke Police Department Defendants acted unlawfully in furtherance of the Chairman's Directive. Iqbal, 129 S. Ct. at 1949. Plaintiffs therefore have stated claims against them. See id.
C. Plaintiffs Allege Facts Showing More Than a "Sheer Possibility" that Levicy, Under CMT Defendant Dzau's Direction, Acted Unlawfully in Furtherance of the Chairman's Directive.

Early on, at the inception of the media eruption surrounding Mangum's false allegations, Tara Levicy was at the center of the storm. Despite Mangum's Sexual Assault Exam ("SAE") not revealing any physical injuries indicative of rape or sexual assault of any kind, AC ¶ 324, including no injury to her pelvic region, including the vaginal walls, cervix, rectum, and anus, id. ¶ 306, and despite the only documented evidence of injury being nominal scratches on Mangum's foot and knee that digitally time-stamped photos taken during the brief dance at 610 N. Buchanan show the exact same injuries were present prior to Mangum's arrival at 610 N. Buchanan Blvd., id. ¶ 326, Levicy reported to Gottlieb and Himan that Mangum's "injuries and her behavior were consistent with a traumatic experience." Id. ¶ 780-81. This along with the statement that "[m]edical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally," id,

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were included in the falsified factual section of the NTID Order. Id. Levicy did not produce significant portions of the SAER in compliance with the DUMC March 21, 2006 subpoena, id. ¶ 785, nor was Levicy as a "SANE-in-training" deemed "qualified or competent to identify, collect, or interpret forensic medical evidence." Id. ¶ 301. Levicy's role expanded when Nifong, Gottlieb, and Himan learned that there would be no DNA evidence to corroborate Mangum's claims. Levicy agreed to "fabricate proof of `trauma' where none, in fact, existed" in order to solve the case's physical evidence problem. Corroborating their unlawful agreement, Nifong then began making public statements in the local and national press, explaining he would be relying on SANE-inTraining, Tara Levicy, and DUMC to prove trauma where none was found. AC ¶ 782(A)(E); Exh. 21; Exh. 22 (documenting Nifong's public statements). The AC alleges that in meetings with Durham investigators, SANE-in-Training, Tara Levicy, deliberately falsified Mangum's Sexual Assault Exam Report ("SAER") by fabricating portions of Mangum's narrative and other portions of Mangum's medical records through contemporaneous responses on the pre-printed SAER including "strikeouts and other addenda that [did] not conform to the facts of the SANE exam," AC ¶ 785, but rather were manufactured attempts by Levicy "to conform the SANE interview to what Gottlieb reported in his sensationalized application for the NTID Order" and Search Warrant for Ryan McFadyen's dorm room, id. ¶ 785-86, in addition to other evidence police believed existed at the time. Id. For example, the SAER was altered to change the response to the question whether "efforts were made to conceal evidence." AC ¶ 785(B). Levicy's "original notation, `no,' was struck through, and the (formerly empty) "yes" blank was checked"; then the words "wiped her off with a rag" were added. Id. The fabrication created a false consistency between the SAER and the SBI report that a towel Himan and Gottlieb seized from 610 N. Buchanan contained semen. Id. (This fabrication would later be foiled by the fact that DNA testing revealed that no DNA matching Mangum was present on the towel.) Id.

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To show "more than a sheer possibility" of the concerted conduct of Levicy, Gottlieb, Himan, and Mangum, on April 6, 2006 (one day after Levicy produced the contemporaneous fabricated pages of Mangum's SAER and two days after the rigged identification procedure), Himan and Gottlieb summoned Mangum to make the only written statement of the attack she would give. AC ¶ 785(C). Consistent with the conspiracy to fabricate evidence to support Gottlieb and Himan's fabricated affidavits and Levicy's fabricated SAER, Mangum's statement was written to match up with the fabricated affidavits and the fabricated SAER. Id. Thus, Mangum wrote of two events that appear nowhere else in the contemporaneous records of Mangum's accounts on March 14th or thereafter. First, Mangum stated that her attackers wiped her off with a towel (thereby linking the towel, the SAER, and her statement). Id. Second, in an "add-on" paragraph annexed to the end of her statement, Mangum wrote that "Adam ejaculated in my mouth and I spit it out onto the floor, part of it fell onto the floor [scratch out]...." Id. This was designed to falsely link Mangum's account to semen found on the bathroom floor. Id. (This, too, would later be foiled by the results of testing that the specimen contained no DNA belonging to Mangum.) In furtherance of the Chairman's Directive and in furtherance of the conspiracy to convict, from March 16, 2006 until January 11, 2007, Levicy repeatedly assured her coconspirators by continuing to proffer false testimony to rebut the overwhelming evidence that Mangum's accusations were false, to perpetuate Plaintiffs' stigmatization, and to secure convictions. AC ¶¶ 787­799. Levicy proffered false testimony to explain why the SAER is rife with statements indicating "no condoms" were used in light of the absence of DNA evidence. Id. ¶ 794. Further, Levicy proffered false claims that Mangum "could always speak articulately" and that she was lucid and "very alert" (in other words, capable of accurately recalling the events of the evening, which would be offered to defeat the anticipated motion to suppress Mangum's in-court identifications of her "attackers"). Id. ¶ 797.

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Plaintiffs allege multiple facts showing that every other medical and law enforcement professional Mangum encountered that evening concluded that Mangum had no accurate or consistent memories of anything (including which city she was in), and was experiencing breaks with reality and suffering from psychosis, AC ¶¶ 253, 256, 291-92; and that this was consistent with Mangum's medical history for quite some time. Id. ¶¶ 258, 315-16. In addition, the Amended Complaint documents the contemporaneous reports of the medical professionals who attended Mangum on the evening in question, id. ¶¶ 293309, which show, among other things, that Mangum recanted the rape claim as soon as she was released from the involuntary commitment proceedings (and the threat of a DSS investigation was lifted). Id. ¶¶ 243-262. Mangum feigned unconsciousness in an effort to deceive Sgt. Shelton, id. ¶¶ 232-34, Mangum feigned symptoms of pain to obtain pain medications she did not require, id. ¶¶ 294-96, 309, 312-20, Mangum had been declared clinically unreliable by her prior treating physicians, id. ¶¶ 315-16; Mangum had a documented history of habitually lying about events and circumstances that she claimed necessitated prescription medications, id.; and, when Mangum was presented for involuntary commitment and later at Duke Hospital for the SAE, Mangum was incoherent, id. ¶¶ 245, 291-92; and that Mangum exhibited signs and symptoms of active psychosis in her encounter with Sgt. Shelton, id. ¶¶ 237-38, during her brief time at 610 N. Buchanan Blvd., id. ¶ 197, and in Pittman's car. Id. ¶ 223. Indeed, Sgt. Shelton's observations of Mangum (together with Kim Roberts' reports of Mangum's bizarre behavior (i.e., Mangum's somnolent mantra, "mark me up, mark me up, that's what I want") led Sgt. Shelton to conclude that Mangum was exhibiting signs of psychosis and to initiate a process to involuntarily commit Mangum to the County's psychiatric facility (Durham Center ACCESS, also operated by DUHS). AC ¶¶ 223, 237-38. These and other facts documented in Plaintiffs' 483-page Amended Complaint are sufficient to more than a "sheer possibility" that Levicy acted unlawfully. See AC § IX ("ADDITIONAL OVERWHELMING EVIDENCE OF INNOCENCE GATHERED DURING

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MANGUM'S 11 HOURS AT DUMC ON MARCH 14, 2006 AND XXXIV (A) (" THE SANE CONSPIRACY: LEVICY'S FALSE CLAIMS OF CORROBORATING EVIDENCE"); see also AC ¶¶ 331, 333. Levicy's motion should be denied.
D. The Amended Complaint Pleads Facts Showing More Than a "Sheer Possibility" that Clark and Meehan Acted Unlawfully.

"On Apil 10, 2006, ... Clark ...was present at the meeting [where] Meehan reported the results... DNASI had identified multiple sources of male DNA on the rape kit swabs alone [and] had concluded--with 100% scientific certainty--that Ryan, Matt, Breck, and their 43 teammates were excluded as potential contributors to any of the male DNA sources found. Id. ¶ 749. Knowing that these results shattered "the case" against the Men's Lacrosse team, id. ¶ 750, Himan, Gottlieb, Nifong, Meehan, and Clark met several times, id. ¶ 755, and discussed how to conceal from Plaintiffs the explosive findings DNASI had made. Id. ¶¶ 765-68. Clark and Meehan orally agreed with Nifong, Himan, and Gottlieb to conceal and obfuscate the exculpatory results of tests conducted with Plaintiffs' DNA. AC ¶ 749; see also id. § XXXIII ("THE CONSPIRACY TO CONCEAL DNASI'S TEST RESULTS IN VIOLATION OF N.C.G.S. § 15A-282"). The agreement to withhold those results violated N.C. GEN. STAT. § 15A-282 (2009), a state statute entitling plaintiffs to the results of tests conducted with the fruits of their NTID Procedures "as soon as the results [we]re available." Id. ¶¶ 641, 677, 758-64, 1142, 1150. On April 21, 2006, Clark and Meehan met with Nifong, Gottlieb, and Himan, and agreed to report DNASI's test results by "utilizing an entirely novel reporting methodology that, by design, would conceal from Plaintiffs the fact that multiple male sources of DNA were found in the rape kit and did not match Plaintiffs or any lacrosse player." Id. ¶755, 765. These findings were proof of Manugm's lie. The AC explains that Clark and Meehan agreed to conceal "the fact that multiple male sources of DNA were found in the rape kit" and that none of it "match[ed] Plaintiffs or any lacrosse player." Id. ¶ 765. These

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explosive findings were available before April 10, 2006, but, during the meeting on April 10, and several meetings thereafter, Clark and Meehan agreed not to produce any report of those results. Id. ¶¶ 749, 755-56, 801-03, 1334-38. The reporting methodology violated DNASI's internal protocols, Federal Bureau of Investigation standards, and regulations governing accredited DNA testing facilities. Id. ¶¶ 756, 802, 1336, 1351. Finally, at the May 12, 2006 meeting with Gottlieb, Himan, Nifong, Meehan, and Clark agreed to produce a report to Plaintiffs and the court knowing that it would be falsely represented as the complete and final report of all tests conducted with Plaintiffs' DNA, and DNASI's findings with respect to DNA testing. AC ¶¶ 756, 1335. However, pursuant to Clark and Meehan's agreement with Nifong, Gottlieb, and Himan, DNASI's belated report omitted "the results [showing] the presence of spermatozoa" and also failed to disclose the fact that tests were conducted comparing the male epithelial and sperm cells found in Mangum's rape kit with Plaintiffs' DNA. Id. ¶ 766.5

Plaintiffs show that, if Clark and Meehan reported the test results according to their protocol and as required by NCGS § 15A-282, the report "would have revealed to the Plaintiffs [on April 10th] the presence of multiple unknown unidentified male sources of

Further, in all of their meetings with their co-conspirators, Clark and Meehan agreed to cover up their conspiracy by agreeing that none among them would take notes of the meetings or memorialize their conversations in writing. AC ¶ 629. The facts showing Clark and Meehan's participation in the cover-up not only adds to the factual basis for Plaintiffs' Section 1983 claims; it also shows that the DNA conspiracy was designed to interfere with Plaintiffs' ability to bring this action in this federal court, in violation of § 1985. See AC ¶¶ 1156-59; see also Pls.' Opp. Br. (DNASI), § IV B-D. Their failure to intervene to prevent the harms to be done in that §1985 conspiracy forms the basis of Plaintiffs' §1986 conspiracy against Clark, Meehan, Gottlieb, Himan, and Nifong. See AC ¶¶ 1170-88; see also Pls.' Opp. Br. (DNASI) (Doc. #79) § IV B-D. These acts were done in furtherance of a conspiracy to deprive Plaintiffs of statutory entitlements that, as such, are protected by the United States Constitution. Plaintiffs seek redress for the deprivations of those constitutionally protected entitlements in their Section 1983 claims against Meehan, Clark, Nifong, Gottlieb, and Himan. See, e.g., AC ¶¶ 941-53, 969-77, 978-85, 1002-1007, 1147-55.

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genetic material in Mangum's rape kit, including the rectal swab, the oral swab, and multiple portions of her underwear." Id. ¶ 758. Plaintiffs present a chart illustrating the explosive results that were, by law, required to be reported to them; the chart shows that those results would have revealed the existence of multiple unknown source of male DNA in Mangum's rape kit. Id. ¶ 759. Clark and Meehan respond to these detailed factual allegations by ignoring and distorting them. They assert that "Plaintiffs appear to premise their claims against him on [Clark's and Meehan's] title alone," and "[a]t most . . . allege that [they were] present at meetings." DNASI Supp. Br. 10 (Doc. #121) ("DNASI Brief"). They also assert that the meetings in which Plaintiffs allege with detail that Defendants concocted and agreed upon a plan to implement a novel report methodology in order to conceal exculpatory DNA evidence, AC ¶¶ 765-68, are " `not only compatible with, but indeed [is] more likely explained by, lawful' interactions between prosecutor and expert," DNASI Br. 4-5 (internal citations omitted), or "the ordinary and expected interaction between key participants in a criminal investigation," id. at 4, or ""the commonplace workings of the law enforcement investigative process." Id. at 5. These alternative explanations may be true with regard to meetings between law enforcement, experts, and prosecutors that discuss DNA results, but not--as Plaintiffs allege--multiple meetings in which they that discuss and agree upon reporting methodologies to conceal DNA testing results in violation of a constitutionally protected statutory entitlement to those results. Accepting as true the detailed facts Plaintiffs have pled, there is more than a "sheer possibility" that Clark and Meehan acted unlawfully. Iqbal, 129 S. Ct. at 1949. Iqbal, 129 S. Ct. at 1949.
E. There is More Than a "Sheer Possibility" that Addison's Conduct was Unlawful.

The AC alleges that Cpl. David W. Addison was presented with facts showing that no crime had occurred and that members of the lacrosse team cooperated--at length--with the police. AC ¶ 560-61. Yet, knowing those things, Addison "engaged in public and

16

private acts that promoted, reinforced, or asserted four false and interrelated claims: (1) a woman was raped by three men at 610 N. Buchanan Boulevard; (2) the perpetrators were members of the team, (3) all members of the team were involved as principals or accomplices, and (4) all members of the team were `stonewalling' the police investigation." Id. ¶¶ 501, 1085. Further, "[i]n his capacity as spokesperson for the City of Durham Police Department, Addison made numerous public statements to representatives of the news media designed to stigmatize the Plaintiffs in the local community and in the eyes of hundreds of millions of people ("the Addison's Statements")." Id. ¶¶ 505-06. Among other things, beginning on March 24, 2006, Addison (falsely) appeared on local and national television and radio programs to broadcast to millions of Americans that "the police investigation had produced `really, really strong, physical evidence' of rape," and that the evidence included genetic material that would "establish a match with DNA from the lacrosse players who committed the rape," id. ¶ 505(A); that "...all of the [lacrosse team] members refused to cooperate with the investigation," id. ¶ 505(B), and this "refusal to cooperate with the investigation" caused issuance of the NTID Order for their DNA, id. ¶ 505(C); that the lacrosse team was given "several chances to cooperate with police ... [but] still kept silent," id. ¶ 505(D); that the "brutal assault, that brutal rape that occurred within that house, cannot be explained by anyone," id. ¶ 505(E); that police knew Plaintiffs were present or participated in the gang-rape, "knew what transpired" and are stonewalling the investigation, id. ¶ 505(G), and that "the millions of viewers watching him should imagine that Plaintiffs raped their daughter, claiming that the NTID Order (and its Affidavit) were necessary only because Plaintiffs knew who raped Mangum but refused to tell police." Id. ¶ 956(B). Plaintiffs also allege "even more strident statements that provided far richer, fabricated detail" made by Addison on condition of anonymity or "not-for-attribution." AC ¶ 506. Further, the AC alleges the incendiary neighborhood flyer broadcast by Addison. Id. ¶¶ 507-514. Addison's statements and inflammatory flier were broadcasted

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from March 24th to as late as May 26th. Id. ¶¶ 505-10. When Addison was making these statements "on national television, local television, radio programs, in local and national newspapers, and email chains that metastasized out to a national and international audience," id. ¶¶ 516; see also id. ¶625, in direct violation of the Durham Police Department's General Orders (e.g., G.O. 4060 R-2) and Standard Operating Procedures, id. ¶ 515, Addison was aware that there was no DNA evidence that any assault occurred, id. ¶ 508, and he knew that members of the team that lived in 610 N. Buchanan had "provided all the assistance, answers, evidence police could think to ask for ... [and then] requested that the police administer a polygraph." Id. ¶ 561. These facts among multiple others detailed throughout Plaintiffs' AC show "more than a sheer possibility" that Addison acted unlawfully.6
F. There is More than a "Sheer Possibility" that Michael's Conduct Was Unlawful.

Kammie Michael does not deny she made the false and inflammatory statements alleged in the Amended Complaint; nor could she--they were broadcast to millions of

Addison's asserts that, under Iqbal, the AC fails to allege specific facts establishing the "plus" element of Plaintiffs' §1983 Stigma-Plus claim, Supervisors Br. 16, but Plaintiffs have already addressed this argument and Ashcroft does not amplify it. Pls.' Opp. Br. (SMAC) (Doc. #82) § II.A. 2-4. Next, Addison's assertion that he was only "attempting to urge witnesses to come forward," (Br. at 16), is only more evidence of his culpability in Plaintiffs claims against him for retaliation against them for asserting their right not to speak to police and attempting to coerce involuntary statements by subjecting them to national scorn and humiliation, and vilifying them in the eyes of millions. See, e.g., Chavez v. Martinez, 538 U.S. 760 (2003) (holding that, because Fifth Amendment is not available to Plaintiff who was not charged or tried, a claim was available under the Fourteenth Amendment's substantive due process prohibition of conduct that shocks the conscience). Because Addison's argument for dismissal fails as a matter of both fact and law, Plaintiffs should be permitted to proceed to discovery on all claims they have asserted against him, including among others stated in the AC, §1983 Claims for Stigma-Plus (and Conspiracy), AC ¶¶ 954-68 ; Retaliation (and Conspiracy), AC ¶¶ 992-1001; Standby-Officer Liability (and Conspiracy), ¶¶ 1008-36; the §1983 Conspiracy to Convict, ¶¶ 1147-55; §1985(3), AC ¶¶ 115669; §1986, ¶¶ 1170-88; Negligence, AC ¶¶ 1261-67; Intentional Infliction of Emotional Distress, AC ¶¶ 1213-22; and Negligent Infliction of Emotional Distress, AC ¶¶ 1277-82 and ¶¶ 1283-88.

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people via the national news organizations she gave them to. Instead, Michael insists that the only "plausible" explanation for the AC's allegations of her wrongful conduct is that "at the time Michael made the statements alleged, she did not know all of the details of the investigation." City Supervisors Br. 18. However, "context here is everything" in the Rule 8 analysis. TRO of Oral Argument at 6, Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (No. 05-1125), 2006 WL 3422211 (2006); see also Twombly, 550 U.S. at 557(2007); Iqbal, 129 S. Ct. at 1950. Michael does not address the allegation that her false statements were parallel and complementary to the numerous other statements made in furtherance of the conspiracy to stigmatize and the conspiracy to foment and leverage public racial animus directed to plaintiffs. AC ¶¶ 566-90. Michael's "erroneous" statements not only evince her agreement to share those conspiratorial objectives, but also show Michael's own participation in the conspiracies to retaliate, stigmatize, and to convict. Michael was still making the erroneous statements 19 days after the Durham Police first learned of the truth of the 911 call, 13 days after the truth had been verified by multiple sources. Id. ¶ 574. During that time period, Michael conspired to destroy the exculpatory portions of the 911 recordings, and continued making statements to foment a racial animus towards the Plaintiffs. Taken as true, these facts show more than a "sheer possibility" that Michael's conduct was unlawful.
G. There is More Than a Sheer Possibility that Gottlieb and Himan's Conduct Was Unlawful.

Plaintiffs allege that Sgt. Mark D. Gottlieb and Benjamin W. Himan fabricated false affidavits to procure a NTID Order directed to Plaintiffs and their teammates, and then to procure a Search Warrant for Ryan McFadyen's dorm room, all in the absence of probable cause. AC ¶¶ 414-44, 909-12; see also Pls. Opp. Br. (City) (Doc. #77) § II.A(1) (Franks
analysis). Indeed, the Amended Complaint alleges facts showing that Gottlieb and Himan

did this knowing that the accusations they were "investigating" were a lie. Id. ¶ 321-32, 362-84. The AC pleads facts showing that Gottlieb and Himan committed numerous

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unlawful acts designed to stigmatize the Plaintiffs, suppress the conclusive evidence of their innocence, fabricate evidence of their guilt, and otherwise conspire to indict, arrest, and convict Plaintiffs and their teammates for crimes they knew did not happen. See id. ¶¶ 627-40, 641-43, 676-87, 746-78, 779-99, 969-77, 978-85, 1147-55. The AC shows that Mangum presented Himan and Gottlieb with multiple inconsistent versions of the accuser's story which were different than those she presented to other officers and medical providers. See id. ¶¶ 245-71, 291-92, 294-96, 312-20, 321-28, 362-84, 670-74, 785(C). Gottlieb and Himan knew that every investigator and medical professional who interacted with Mangum on March 14 did not believe her claims (except when she recanted them). See id. 262-65, 266-71, 278, 285-88, 331, 333. They knew that Mangum could not recognize the Plaintiffs or their teammates in identification procedures that preceded the rigged April 4, 2006, procedure. Id. ¶¶ 362-84. They discussed at the March 27th Briefing that Mangum's story had several glaring contradictions and that she was not credible. See id. ¶¶ 382, 591-93. Kim Pittman--a key witness in the case--told them that Mangum's claims were " `a crock.' " Id. ¶ 385. They were told at an April 10th meeting that DNA evidence proved that "a significant number of male sources of sperm and epithelial DNA [were found] in Mangum's rape kit and [that further testing] had concluded--with 100% scientific certainty--that Plaintiffs and their teammates did not match any of the male DNA found in the rape kit." Id. ¶ 801. And if the conclusion that Mangum was lying, delusional or both still escaped them, the point was made plainly enough by their coconspirator, Nifong, who, after receiving Himan and Gottlieb's report summarizing the extraordinary evidence of innocence and the fatal defects in Mangum's claims, told them directly, "`You know, we're f*cked.'" Id. ¶ 593. Gottlieb and Himan assert (again) that they cannot be blamed because Plaintiffs "allege that Nurse Levicy falsely told City investigators that Crystal Mangum had signs, symptoms, and injuries consistent with being raped and sexually assaulted." Gottlieb, Himan, and City Supp. Br. 5 (Doc. #123) ("City Brief"). Plaintiffs allege no such thing.

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Paragraph 780 of the AC alleges that "the falsified factual sections of the NTID Order ... Gottlieb included the gist of what he claimed Levicy reported to him ..." AC ¶780. The AC then quotes the NTID Affidavit's "falsified" account of the Sexual Assault Exam. AC ¶¶ 785-99.8 Gottlieb and Himan do not dispute that it was a constitutional violation to deprive Plaintiffs of their statutory entitlement to reports of tests conducted with their DNA and Mug Shots as soon as the results were available. City Br. 6-8. Instead, they blame it on Nifong, asserting that it was Nifong (and not them) who "decided not only who would test the DNA, but how the results would be explained to the public and shared with the defense." City Br. 7. However, if that is true, then the City Defendants only amplify Plaintiff's allegation that the City delegated its policymaking authority to Nifong, who, acted unconstitutionally in exercising it, and, knowing of that, failed to revoke the authority or correct Nifong's conduct. However, the City's argument misses the mark because neither they nor Nifong had any discretion to decide what tests results would be produced to Plaintiffs or when to produce them because the Legislature took all discretion away when it enacted N.C. GEN. STAT. § 15A-282. The statute entitled Plaintiffs to a copy of the results of every test conducted with Plaintiffs' DNA or their Mug Shots "as soon as the reports [we]re available." N.C. GEN. STAT. § 15A-282 (emphasis added). A person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available.

Gottlieb and Himan, like Clark and Meehan, assert that AC's only allegation of their participation in the DNA Conspiracy is, they summarize, they "sat in meetings with the State Prosecutor and representatives of DNASI." City Br. 6 (citing AC ¶ 765). However, the AC does far more to support the allegation than merely name participants of meetings. See AC ¶¶ 641-44, 746-68, 801-03, § XXV ("THE DNA CONSPIRACY"); see also discussion supra § 2(d) ("Clark and Meehan Acted Unlawfully").

8

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Id. Taking these facts as true, Plaintiffs show more than a "sheer possibility" that Gottlieb, Himan, Nifong, Clark, and Meehan agreed to deprive Plaintiffs of the DNA reports to which they were entitled by statute. And even if they didn't, the transcript of Meehan's confession to the Conspiracy in a hearing on his DNA testing does. The City Defendants misunderstand the Conspiracy to Convict when they allege that Plaintiffs only allegations supporting it relate to their presence at "meetings between Nifong and the City investigators." City Br. 8. First, those who participated in the Conspiracy to Convict shared the unlawful objective of wrongfully convicting Plaintiffs and their teammates for a crime they knew did not occur. All of the §1983 conspiracies (Plaintiffs First through Eleventh Causes of Action) are pled in the Twelfth Cause of Action as unlawful acts in furtherance of the Conspiracy to Convict. Thus, Gottlieb and Himan's participation in just the DNA conspiracy described above is sufficient to establish their participation in the overarching Conspiracy to Convict. (They are also implicated in the Conspiracy to Convict by participation in the Fourth Amendment Conspiracies, the Stigma Plus Conspiracy, among others). See AC ¶¶ 904-17, 918-28, 929-40, 954-68. Finally, Gottlieb and Himan assert that their use of text from an email that an anonymous source claimed was sent by Ryan McFadyen was not malicious, and that Iqbal confirms his right to Public Officer Immunity. City Br. 8-9. However, malice is not an element of Plaintiffs constitutional claims relating to their use of the illegally obtained email (i.e., Plaintiffs First and Second Causes of Action (alleging Fourth Amendment violations)). See AC ¶¶ 904-17, 918-28. With respect to any claims that do require malice and, Plaintiffs have already shown that black letter Fourth Amendment law prohibits the use of information from anonymous sources as a basis for probable cause. See discussion, Pls' Opp. Br. (City), §II.(A)(1)b (and the cases cited therein). No reasonable officer would believe otherwise. Id. Because Himan and Gottlieb's original fabrications were sufficient to deceive a judge into issuing 46 NTID orders, including one directed to McFadyen, it is not "plausible" to suggest, as Gottlieb and Himan do, that a reasonable officer would think

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their original fabrications (which they simply copied to obtain the search warrant) required additional material, particularly when the material may not be considered as a matter of law in determining probable cause. Moreover, Iqbal does not "confirm[] . . . Gottlieb and Himan's right" to public officer immunity. City Br. 13-14. Iqbal never even addresses public officer immunity. And, the immunity is not available to defendants who, like Himan and Gottlieb, "violate clearly established rights because an officer acts with malice when he does that which a man of reasonable intelligence would know to be contrary to his duty." Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003)(internal quotations omitted). The immunity also does not protect public officials who do not "keep within the scope of their official authority and act without malice or corruption." Id. (citing Grad v, Kaasa, 321 S.E.2d 888, 890 (N.C. 1984)).9 Iqbal does nothing to save the City Defendants' Motion, and it should be denied.
H. There Is More Than A "Sheer Possibility" That Clayton's Conduct Was Unlawful.

The Amended Complaint alleges that Clayton participated in one of the most chilling dimensions of the conspiracies alleged: the rigged April 4, 2006, photo identification procedure, and the cover-up of the exculpatory identification procedures that preceded it. AC ¶¶ 363-84, 441-44, 611-15, 666-75, 972, 978-85. Having participated in the prior identification procedures on March 16th and 21st, Clayton knew that Mangum had no recollection of Plaintiffs or their teammates in the days and weeks after the party.
The City Defendants argue that it is implausible to infer deliberate indifference to Plaintiffs' constitutional rights because they conveyed to Nifong and their chains of command the utter lack of evidence to support Mangum's claims and the overwhelming evidence supporting Plaintiffs innocence. See City Br. 10-11. To the contrary, what is not "plausible" is that communicating the absence of probable cause with a co-conspirator prior to fabricating probable cause to obtain NTID Orders and Search Warrants somehow precludes the inference of malice.
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Id. ¶¶ 362-84, 611-615. Further, Clayton completely ignores the allegations of the chilling misconduct that pervaded the rigged April 4th photo identification procedure, including the facts showing that Clayton and Gottlieb fabricated false evidence of Mangum's ability to recall the events of the evening in question by showing her photographs taken at 610 N. Buchanan shortly before the party. Id. ¶¶ 670-75. With the aid of those photographs, Mangum was able to recall from memory specific individuals from the party, what they were wearing and where they were sitting. Id. The purpose of fabricating Mangum's ability to recall those details was to enable the State to survive a motion to suppress Mangum's incourt identification of the three team members that she would select as her "attackers" in the April 4th identification procedure. See id. 661-64, 797. We know that Mangum did not recall those details from memory because, on April 4th, Mangum purported to recall what several individuals were wearing and, in the prior identification procedures, Mangum could not recall ever seeing them before. See id. ¶¶ 362-84, 666-75, 676-81(explaining that the specific and dramatic improvements in Mangum's memory over time was the result of her being shown pictures from David Evans' camera taken before Mangum arrived). The Amended Complaint alleges facts that show more than a "sheer possibility" that Clayton acted unlawfully.
I. The Amended Complaint Pleads Facts Showing More Than a `Sheer Possibility' that Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Soukup, Acted Unlawfully.

Contrary to the Duke Defendants' assertion, Iqbal did not "establish[] important precedent " in stating that "a plaintiff in a §1983 action cannot hold supervising employees vicariously liable for the wrongful actions of their subordinates." Duke Supp. Br. 15 (Doc. #120) ("Duke Brief").11 The rule against vicarious liability has been the law of § 1983
11

While Duke stands alone in suggesting that a rule barring vicarious liability in §1983 suits is somehow `new', their co-defendants nevertheless assert that Iqbal's application of the rule is relevant to their Motions. See City Supervisors Br. 2-3; City Br. 2 n.3; DNASI Br. 10-11.

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actions for nearly a century.13 That is why Plaintiffs do not seek to hold any defendant liable on that basis. See, e.g., Pls.' Opp. Br. (City Supervisors) 23-26 (Plaintiffs do not seek to hold defendants liable on a theory of respondeat superior.). Instead, Plaintiffs have pled facts showing that each of the Supervising Defendants personally engaged in unconstitutional conduct. In addition, Iqbal does nothing to alter the rule that dismissal is not appropriate where "supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care." Shaw v. Stroud, 13 f.3d 791, 798(4th Cir. 1994) (citing cases) (internal citations and quotation marks omitted); see also Bodkin v. Strasburg, No. 5:08CV00083, 2009 WL 1806656, *4 n.5 (W.D. Va. June 24, 2009) (noting that municipalities cannot be held liable under § 1983 on a respondeat superior theory, but denying, under Iqbal, a motion to dismiss § 1983 claims against municipality and employee in his official capacity because municipal officers "who potentially had `final policymaking authority'" rejected plaintiff's attempt to rescind his resignation) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)(plurality); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)); Riddick v. Sch. Bd., 238 F.3d 518, 523 (4th Cir.2000)).

In Iqbal, it was "undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior"). Resp. Opp. Br. at 9, Iqbal, 129 S. Ct. 1937 (2008) (No. 071015), 2008 WL 2095715. See also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, (1978) (finding no vicarious liability for a municipal "person" under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S. 507, 515-16 (1888) ("A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties."). Dunlop v. Munroe, 11 U.S. 242, 269 (1812) (a federal official's liability "will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties).

13

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1.

Plaintiffs Allege Specific Facts Showing the Supervisors' Direct Participation in the Deprivation of Plaintiffs' Constitutional Rights.

The Amended Complaint pleads that, before March 24, 2006, [the Duke Police Supervising Defendants] had "primary" responsibility to initiate and conclude the investigation of Mangum's false accusation of a sexual assault within the Duke Police Department's jurisdiction. AC ¶¶ 82-106, 188-93, 1289-94, ATTACHMENTS 2,3, 7. The AC alleges that Duke Police ruled Mangum's accusations of sexual assault unfounded, based upon the reports of the Durham and Duke Police officers and the medical personnel who interacted with her (including those who initiated involuntary commitment proceedings because she showed symptoms of psychosis). Id. ¶¶ 235-37, 247-61, 262-71, 278-81, 285-88, 291-92, 293-309, 321-31. The Amended Complaint alleged that, on or before March 24, 2006, Defendants Baker, Chalmers, Hodge, Mihiach, Council, Lamb, Ripberger, and other City officials with policymaking authority with respect to the investigation of Mangum's false allegations, agreed to assign Gottlieb and Himan to the investigation, id. ¶¶ 333-40, 436-49, 1270-71, and on March 24, 2006, they agreed to grant Nifong policymaking authority over the police investigation. Id. ¶¶ 486-87. That same day, pursuant to that delegation of policymaking authority, Gottlieb's supervisor, Lamb instructed Gottlieb, Himan, and Ripberger to take direction--not from Lamb--but from Nifong, id. ¶ 487, despite the fact that both the Durham and Duke Police Supervisors knew that Nifong had no police experience or training, id. ¶ 1084(A); that he had not tried a felony case in nearly a decade, id. ¶ 480; that he was in losing an election to retain his job in a race against a bitter rival, id. ¶ 1084(B); that he had a history of unpredictable, explosive, irrational, and unstable behavior, id. ¶ 1084(C); that he was looking for a sensational case to establish name recognition, see id. ¶¶ 480-85, 1084(B); and that he already had made numerous public and private statements committing the investigation to a determinate outcome. Id. ¶¶491-95, 1085; see also id. ¶¶ 447, 488-490, 1303(C).

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The Duke and Durham Police Supervising Defendants were made aware of the overwhelming evidence that no assault had occurred, see id. ¶¶ 256, 262-77, 285-88, 29192, 293-309, 321-32, 333, 353-54, 363-84, 402, 498-99, yet--cowed by intense pressure from the community they had allowed Nifong, Gottlieb, Himan, Addison to foment on March 29, 2006, the Duke Police Supervising Defendants and the Durham Police Supervising Defendants summoned Himan and Gottlieb to one or more Joint Command Meetings, during which they reported to all of the Police Supervising and Officials Defendants the state of the evidence in the case. The Amended Complaint devotes dozens of pages to the state of the evidence in the case, all of which Plaintiffs allege was reported to the Defendants, who were all present at the Joint Command Meeting on March 29th. AC ¶¶ 243-56, 262-88, 291-310, 321-31, 351-53, 362-84, 385-86, 414-44, 441-42, 466-75, 559-65, 568-76, 591-606, 617-24, 627-40, 1242(A)-(C). Upon learning that all of the evidence developed in the case proved Plaintiffs and their teammates were innocent, and that Mangum's allegation was the product of either duress or psychosis (or both), that Gottlieb and Himan had fabricated the Affidavits submitted to the Court to obtain the NTID Orders and the Search Warrant of Ryan McFadyen's Room, that Duke personnel violated the Federal Electronic Communications act by obtaining Ryan McFadyen's email and disclosing it to foment public outrage, AC ¶¶ 597-610, among other unconstitutional acts, the Supervising Defendants at the Joint Command Meeting, in addition to Senior Duke University and City Officials in attendance, agreed and directed Himan and Gottlieb to move quickly to charge three white Duke lacrosse players, so they could be brought to trial by Nifong, who was assured by Duke's CMT members (which included the Chairman and DUHS Chairman Victor Dzau) he would have the aid of Levicy's fabricated evidence of "blunt force trauma" that she did not observe (nor could she). Id. ¶¶ 459, 790-91. The Supervising Defendants issued this directive knowing the overwhelming evidence--including the newly released DNA evidence--that demonstrated Plaintiffs' innocence. See id. ¶¶ 632-40, 641-42, 1244-45.

27

The Directive was in response to the openly admitted fear that the outrage the public acts and statements by Duke University Defendants and City of Durham Defendants had fomented would be directed upon University and City Officials accompanied by race riots and the fear that "Durham would surely burn." AC ¶ 637. In response to the Supervising Defendants directive at the Joint Command Meeting, Nifong, Gottlieb and Himan designed a new, suggestive photo array procedure to present to Mangum. Id. ¶¶ 660-64. Consistent with the Joint Command's directive, two days later, Duke and Durham Police Supervising Defendants approved the proposed procedure despite the fact that it constituted a violation and/or a change in Durham Police policy from the requirements of General Order No. 4077, which had been implemented to prevent deprivations of constitutional rights. See id. ¶¶ 666-69, 677-78, 972, 1078-79. As a result of that rigged Procedure, Mangum identified Plaintiff Matthew Wilson as an attacker in a manner not materially different that Mangum's identification of David Evans. As the only native North Carolinian on the team (Matthew grew up in Durham), it would appear that he was spared indictment by virtue of his state residency. The City Defendants offer no other "obvious alternative explanation" for Gottlieb's decision not to follow up on Mangum's quasi-identification of him as he did with Evans. Throughout the investigation of Plaintiffs and their teammates, Duke and Durham Supervisors learned "through the chain of command" and by other means, including nationally televised broadcasts, that Nifong and Durham Police officers were conducting manipulative identification procedures that violated constitutional standards, AC ¶¶ 66669, making false stigmatizing statements, id. ¶¶ 500-35, 540-58, 570-75, 577-90, 809-11, 827-51, ATTACHMENT 23 (evidence of stigmatization), fabricating medical evidence, id. ¶¶ 779-799, intimidating witnesses who had information about Plaintiffs' innocence, id. ¶¶ 385-86, 770-72, 816-22, 896, 1114, 1150(H), 1195, 1216, concealing evidence of Plaintiffs' innocence, id. ¶¶ 595, 441-44, 617-59, 746-99, fabricating false evidence, id. ¶¶ 660-75, 779-99, and making false public statements regarding Plaintiffs and the Duke lacrosse

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team," id. 414, 500-16, 529-35, 577-80, 809-11, 827-51, 956(D), they did not act to intervene, despite having the power and opportunity to do so. Id. ¶¶ 1170-88. Instead, the Duke and Durham Police Supervising Defendants and Steel personally, aided, abetted, ratified and condoned the unconstitutional conduct by continuing to recognize Nifong's authority over the police investigation, both by example and by directing the Duke Police officers and the Day Chain of Command to not intervene but instead to conceal and cover up the evidence in their possession and knowledge of Plaintiffs' innocence, AC ¶¶ 212, 256-62, 445-458, 466-75, 523-24, 536-39, 632-33, 1114-16, by directing Durham Police officers not to intervene but instead to continue reporting to Nifong and ratify and/or condone the ongoing violations of Plaintiffs' federally protected rights occurring in plain view and to act swiftly to charge, prosecute, and convict Plaintiffs and/or their teammates, id. ¶¶ 516-17, 523-24, 576, 634-36, 890-91, 964, 1114-16, and by directing Levicy to continue providing false and fabricated evidence to prop up Mangum's claims. See id. ¶¶ 788-89. The Durham Police Supervising Defendants directed Nifong, Wilson, Lamb, Gottlieb and Himan to intimidate