MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
136
Second AMENDED COMPLAINT against defendant DAVID W. ADDISON, THERESA ARICO, R.N., PATRICK BAKER, JEFFREY O. BEST, RICHARD H. BRODHEAD, PHD, STEPHEN BRYAN, JOHN BURNESS, STEVEN CHALMERS, RICHARD CLARK, RICHARD D. CLAYTON, PHYLLIS COOPER, BEVERLY COUNCIL, KEMEL DAWKINS, ROBERT DEAN, DNA SECURITY, INC., MATTHEW DRUMMOND, DUKE POLICE DEFENDANTS, DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, INC., DUKE UNIVERSITY POLICE DEPARTMENT, VICTOR J. DZAU, M.D., LAIRD EVANS, JOSEPH FLEMING, WILLIAM F. GARBER, II, MARK D. GOTTLIEB, AARON GRAVES, ALLISON HALTON, BENJAMIN W. HIMAN, RONALD HODGE, LEILA HUMPHRIES, JEFF LAMB, PETER LANGE, PHD, TARA LEVICY, R.N., JULIE MANLY, M.D., BRIAN MEEHAN, PHD, KAMMIE MICHAEL, STEPHEN MIHAICH, LARRY MONETA, ED.D., MICHAEL B. NIFONG, PRIVATE DIAGNOSTIC CLINIC, PLLC, MICHAEL RIPBERGER, LEE RUSS, EDWARD SARVIS, JAMES SCHWAB, GARY N. SMITH, JAMES T. SOUKUP, ROBERT K. STEEL, GREG STOTSENBERG, THE CITY OF DURHAM, NORTH CAROLINA, TALLMAN TRASK, III, PHD, SUZANNE WASIOLEK, LINWOOD WILSON, filed by MATTHEW WILSON, RYAN MCFADYEN, BRECK ARCHER.(EKSTRAND, ROBERT) Modified on 2/24/2010 to correct document image (Law, Trina).
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NITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN; MATTHEW WILSON; and BRECK ARCHER, Plaintiffs, v. DUKE UNIVERSITY; DUKE UNIVERSITY POLICE DEPARTMENT; AARON GRAVES; ROBERT DEAN; LEILA HUMPHRIES; PHYLLIS COOPER; WILLIAM F. GARBER, II; JAMES SCHWAB; JOSEPH FLEMING; JEFFREY O. BEST; GARY N. SMITH; GREG STOTSENBERG; ROBERT K. STEEL; RICHARD H. BRODHEAD, Ph.D.; PETER LANGE, Ph.D.; TALLMAN TRASK, III, Ph.D.; JOHN BURNESS; LARRY MONETA, Ed.D.; VICTOR J. DZAU, M.D.; ALLISON HALTOM; KEMEL DAWKINS; SUZANNE WASIOLEK; STEPHEN BRYAN; MATTHEW DRUMMOND; DUKE UNIVERSITY HEALTH SYSTEMS, INC.; PRIVATE DIAGNOSTIC CLINIC, PLLC; JULIE MANLY, M.D.; THERESA ARICO, R.N.; TARA LEVICY, R.N.; THE CITY OF DURHAM, NORTH CAROLINA; MICHAEL B. NIFONG; PATRICK BAKER; STEVEN CHALMERS; RONALD HODGE; LEE RUSS; STEPHEN MIHAICH; BEVERLY COUNCIL; JEFF LAMB; MICHAEL RIPBERGER; LAIRD EVANS; JAMES T. SOUKUP; KAMMIE MICHAEL; DAVID W. ADDISON; MARK D. GOTTLIEB; BENJAMIN W. HIMAN; LINWOOD WILSON; RICHARD D. CLAYTON; DNA SECURITY, INC.; RICHARD CLARK; and BRIAN MEEHAN, Ph.D. Defendants.
Case No. 1:07-cv-953
SECOND AMENDED COMPLAINT JURY TRIAL DEMANDED
1
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TABLE OF CONTENTS SUMMARY OF THE ACTION ....................................................................................... 2 THE PARTIES .................................................................................................................. 4 I. THE PLAINTIFFS ........................................................................................................ 4 II. THE DEFENDANTS ................................................................................................... 4 A. B. C. Duke University Defendants .............................................................. 4 City of Durham Defendants ............................................................. 17 DNASI Defendants .......................................................................... 27
JURISDICTION & VENUE........................................................................................... 30 FACTUAL ALLEGATIONS ......................................................................................... 31 I. THE SECRET: THIS WAS THE DUKE POLICE DEPARTMENT'S CASE ...........................................................................................................31 A. B. C. The Duke Police Department Had the Primary Responsibility to Investigate Mangum's False Accusations............ 31 The University's False-Helplessness Message ................................ 33 The Duke Police Department's Established Practice of Taking Exclusive Responsibility for Investigating Crimes Reported in its Primary Jurisdiction ................................................. 35 At All Times, the Duke Police Department Had a Realistic Opportunity to Prevent the Harms Done to Plaintiffs, But Instead `Turned a Blind Eye' to the Plainly Obvious Violations of Plaintiffs' Rights, and Did Nothing ........................... 41
D.
II. ORIGINS OF THE DUKE-DURHAM CONSPIRACY: THE "ZEROTOLERANCE FOR DUKE STUDENTS" POLICY ................................. 41 A. B. Duke-Durham Policy to Target Duke Students for Disproportionate Enforcement of the Criminal Laws ...................... 42 Duke and Durham Publicly Condone and Ratify the Targeting of Duke Students ............................................................. 45
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III. "ZERO-TOLERANCE FOR DUKE STUDENTS": AN ESTABLISHED POLICY AND PRACTICE IN THE FALL OF 2005 ....................................................................................................... 46 A. B. C. The Consortium's Warrantless Raids of Duke Students' Homes ...............................................................................................46 In One Weekend, Consortium Agents Charged Roughly 200 Duke Students Without Admissible Evidence ................................. 49 Duke Officials with Final Policymaking Authority Ratified the Warrantless Raids, and Initiated Cumulative Prosecution of the Students Within the University's Disciplinary System ......... 51 Durham Judge Declares the Warrantless Raids and Interrogations of Duke Students Illegal ........................................... 53 Police Misconduct and Student Abuse Escalates and Turns Violent Through the Fall of 2005, Culminating in the Investigation of Mangum's False Allegations ................................. 54 Gottlieb's Raid of 203 Watts............................................................ 57 Sarvis Ratifies and Condones the Escalating Police Abuse of Duke Students .................................................................................. 63 M.D. Gottlieb ................................................................................... 64 Duke and Durham Receive Notice that Gottlieb is Dangerous to the Welfare of Duke Students .................................... 65 Shortly After the Gottlieb Dossier Was Delivered, Sgt. Gottlieb Was Transferred Off the Patrol Beat.................................. 67 Gottlieb's Replacement: Sgt. John Shelton ...................................... 67 Captain Sarvis Ratified and Condoned Gottlieb's Abuses From His Post in Internal Affairs ..................................................... 68 Duke University Officials Ratify and Condone Gottlieb's Abuses and Reveal that the University was an Author of the Zero-Tolerance for Duke Students Policy........................................ 69
D. E.
F. G.
IV. THE GOTTLIEB DOSSIER .................................................................................... 64 A. B. C. D. E. F.
V. IN FEBRUARY, 2006, DUKE UNIVERSITY ASSUMED PRIMARY POLICE JURISDICTION OVER 610 N. BUCHANAN AND A RAFT OF NEARBY PROPERTIES ALONG DUKE'S EAST CAMPUS.......................................................................................... 70
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VI. THE FIRST 48 HOURS ........................................................................................... 71 A. Overwhelming Evidence that Mangum was not Assaulted at 610 N. Buchanan is Amassed in the First 48 Hours of Mangum's False Accusation ............................................................ 71 The "Anonymous" 911 Call ............................................................. 75
B.
VII. THE FIRST INVESTIGATION: GOTTLIEB'S REPLACEMENT, SERGEANT SHELTON, AND INVESTIGATOR JONES CONCLUDE MANGUM'S CLAIMS ARE FABRICATIONS................. 76 A. B. C. D. E. A. B. C. D. Sgt. J.C. Shelton Responds to Pittman's 911 Call ........................... 76 On the Drive Away from 610 N. Buchanan: Evidence of Psychosis .......................................................................................... 78 Kroger Security Guard, Angel Altmon: `Ain't No Way.' ............... 78 Mangum's Bizarre Behavior Meets the Criteria for Emergency Involuntary Commitment .............................................. 80 Angel Altmon: Ain't No Way. ......................................................... 81 Mangum's Involuntary Commitment Proceedings .......................... 82 Mariecia Smith ................................................................................. 82 Alycia Wright, R.N. ......................................................................... 83 Officer Barfield ................................................................................ 84
VIII. MANGUM NODS `RAPE' ................................................................................... 82
IX. ADDITIONAL OVERWHELMING EVIDENCE OF INNOCENCE GATHERED DURING MANGUM'S 11 HOURS AT DUMC ON MARCH 14, 2006................................................................................. 86 A. B. C. Sgt. Shelton Questions Mangum, and She Recants ......................... 86 Officer Gwen Sutton's Interview of Mangum ................................. 87 Durham Police Determine that 610 N. Buchanan is in the Duke Police Department's Jurisdiction and the Case is Transferred to Duke Police Investigators ......................................... 88 Duke Police Department Initiates Its Investigation ......................... 90 Inv. B. Jones Interviews Mangum.................................................... 93
D. E.
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F.
The Clinical and Forensic Medical Evidence Collected at DUMC Corroborates Mangum's Recantation and Adds to the Already Overwhelming Proof That Mangum was Lying .......... 94
X. MARCH 15TH: ADDITIONAL EVIDENCE OF MANGUM'S FRAUD EMERGES AT UNC HOSPITALS ........................................... 100 A. B. New Hospital, New Story, New Motive ........................................ 100 Evidence Emerges of Mangum's Long History of Mental Illness and Addictions .................................................................... 101
XI. THE BODY OF EVIDENCE AMASSED IN THE FIRST 48 HOURS PROVED MANGUM'S RAPE CLAIM WAS A HOAX ........................ 102 XII. THE SECOND INVESTIGATION (MARCH 16 21): DUKE UNIVERSITY DEFENDANTS AND DURHAM POLICE COLLABORATE TO IDENTIFY THE PERPETRATORS OF A GANG RAPE THAT DID NOT HAPPEN .................................... 107 A. B. Gottlieb "Adopts" the Case ............................................................ 107 Gottlieb's First Investigative Act Was to Stigmatize the Plaintiffs in the Eyes of the Community by Falsely Asserting That a Rape Had, In Fact, Occurred .............................. 109 Gottlieb Assigns the Case to Ben Himan, a Rookie Property Crimes Investigator ........................................................................ 110 Duke Police and Durham Police Aid in Gottlieb's ReInvestigation of Mangum's Fictitious Claims ................................ 111 Gottlieb Launches his Re-Investigation with Effort to Identify the "Attackers" ................................................................. 113 Gottlieb and Himan "Interview" Mangum and Obtain Even More Evidence of Plaintiffs' Innocence ........................................ 114 Mangum's Descriptions and the March 16th and 21st Identification Procedures Eliminated Every Team Member as a Plausible Suspect..................................................................... 115
C. D. E. F. G.
XIII. AS OF MARCH 21ST, THERE WAS NO RATIONAL BASIS TO CONTINUE INVESTIGATING THE DUKE LACROSSE TEAM ........................................................................................................119 A. Mangum was not Credible ............................................................. 119
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B.
Even if Mangum were Credible, Mangum had Already Eliminated Every Member of the Team as a Plausible Suspect ........................................................................................... 120 Gottlieb and Himan Coerce Pittman to Recant her Statement that Mangum's Claim was a Crock and Provide a New Statement that Created a Window of Opportunity for a Sexual Assault to have Occurred ................................................... 121
C.
XIV. MANY, MANY STONES LEFT UNTURNED ................................................. 122 XV. THE CONSPIRACY TO ORCHESTRATE THE MASS INTERROGATION OF UNCOUNSELED STUDENTS ........................ 126 A. B. C. D. Duke University Defendants' Acts in Furtherance of the Conspiracy ......................................................................................126 The Durham Police Defendants' Acts in Furtherance of Conspiracy ......................................................................................127 Implementation of the Conspiracy ................................................. 128 Counsel Intervenes Overnight to Advise the Plaintiffs and their Teammates of the Nature of the Charges and the Nature of the Individual Investigating Them ................................. 129
XVI. THE CONSPIRACY TO RETALIATE AGAINST PLAINTIFFS FOR EXERCISING CONSTITUTIONAL RIGHTS ............................... 130 A. Gottlieb and Himan Abused the NTID Order Process in Retaliation Against Plaintiffs for Exercising Their Constitutional Rights ...................................................................... 130 WhenPolice Sought the NTID Order Directed to Plaintiffs, Mangum HadAlready Excluded Them As Plausible Suspects ..........................................................................................137
B.
XVII. THE CHAIRMAN'S DIRECTIVE .................................................................... 139 XVIII. THE CONSPIRACY TO CONCEAL THE DUKE POLICE DEPARTMENT'S STATUTORY AUTHORITY TO INTERVENE AND INVESTIGATE ........................................................140 A. B. The CMT'S Acts in Furtherance of the Conspiracy ...................... 141 Duke Officials Cascade the Message that Only the Durham Police have the Authority to Investigate and Find the Truth. ........ 142
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C.
Duke Police Officers Concealed Exculpatory Evidence by Fabricating False and Misleading Hospital "Witness Statements" .....................................................................................145 Duke Police Department's Public Efforts to Conceal its Authority to Intervene .................................................................... 149
D.
XIX. THE THIRD INVESTIGATION (MARCH 24TH JANUARY 11TH): NIFONG ARROGATED THE INVESTIGATION TO HIMSELF TO WIN ELECTION .............................................................. 150 A. Nifong's Non-electability............................................................... 150 XX. THE UNIVERSITY'S EFFORT TO COERCE CONFESSIONS IN THE ABSENCE OF COUNSEL .............................................................. 153 XXI. THE CONSPIRACY TO CONVICT BY STIGMATIZTION IN RETALIATION FOR PLAINTIFFS' EXERCISE OF THEIR CONSTITUTIONAL RIGHTS ................................................................. 154 A. B. C. D. E. F. Nifong's Public Acts and Statements ............................................. 155 Addison Publicly Stigmatized the Plaintiffs .................................. 158 The Established Policy or Custom of Disseminating Defamatory Posters in Potentially High-Profile Cases .................. 164 Duke Officials Publicly Stigmatized the Plaintiffs ........................ 166 Duke University's Clergy Publicly Stigmatize the Plaintiffs ........ 173 Duke University and City of Durham Officials with Final Policymaking Authority Ratified and Condoned the Foregoing Faculty and Employee Statements ................................ 174 Plaintiffs did not Refuse to Cooperate Until it was Plainly Obvious they were Being Framed for Crimes Police Knew Never Happened ............................................................................. 176 Plaintiffs did "Come Forward" to Unequivocally Deny the Allegations and Assert that the DNA Will Prove Their Innocence (Again) .......................................................................... 177 Unbeknownst to the Plaintiffs, the DNA Test Results Already Proved Mangum's Accusations were False ..................... 178
XXII. THERE NEVER WAS A STONE WALL OF SILENCE ................................. 176 A.
B.
C.
XXIII. THE RACIST DIMENSION OF THE CONSPIRACY TO CONVICT ................................................................................................. 178
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A. B. C. D.
Spoilation of DECC Evidence ....................................................... 179 Nifong's Acts in Furtherance of the Conspiracy to Fabricate a "Racist" Dimension to Mangum's False Rape Accusation ......... 182 Brodhead's Acts in Furtherance of the Conspiracy to Fabricate the "Racist" dimension to Mangum's False Rape.......... 184 The Duke Faculty's Acts in Furtherance of the Fabrication of a "Racist" Dimension to Mangum's False Allegations ............. 184 Himan and Gottlieb Brief Nifong and Conspire to Stigmatize the Plaintiffs ................................................................. 187 Ryan's Email .................................................................................. 188 The Agreement to Abuse the Warrant Power ................................ 188 Judge Stephens Frustrated the Conspiracy, Temporarily............... 193 March 27th: The SBI Lab's Testing of the Rape Kit Begins, and Ends ......................................................................................... 194 March 28th: SBI Lab Notifies Himan and Nifong that There will be No DNA Match Between any Player and Mangum's Rape Kit Items ................................................................................ 194
XXIV. THE CONSPIRACY TO ABUSE THE WARRANT PROCESS ................... 187 A. B. C. D. A. B.
XXV. THE DNA CONSPIRACY ................................................................................ 194
XXVI. MARCH 29TH: THE DUKE--DURHAM JOINT COMMAND MEETS ......................................................................................................196 XXVII. NIFONG, HIMAN, AND GOTTLIEB CONSPIRED TO WITHHOLD DNA TEST RESULTS THAT PROVED MANGUM'S CLAIMS WERE A FRAUD IN VIOLATION OF N.C.G.S. § 15A-282 ............................................................................ 201 A. B. Plaintiffs' Entitlement to Results Pre-indictment .......................... 201 Nifong, Himan, and the Himan Chain of Command Agree to Delay Disclosure of the SBI Lab's Test Results in Violation of N.C.G.S. §15A-282.................................................................... 203 Faced with Irrefutable Evidence of Plaintiffs' Innocence, Nifong and the Himan Chain of Command Resolved to Fabricate a Case Against Plaintiffs and/or Their Teammates ........ 203
C.
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D.
With No Forensic Evidence of a Violent Assault from the SBI Lab, Nifong Traded Horses..................................................... 204
XXVIII. ON APRIL 4TH, NIFONG RECEIVES THE FINAL SBI REPORT OF ALL TEST RESULTS; AND NIFONG SEEKS ASSISTANCE FROM A PRIVATE DNA LAB THAT WAS AGGRESSIVELY LOBBYING FOR THE CITY'S BUSINESS ................................................................................................ 207 XXIX. THE IDENTIFICATION CONSPIRACIES .................................................... 209 XXX. THE CONSPIRACY TO FABRICATE IDENTIFICATION EVIDENCE ............................................................................................... 211 A. B. The April 4th "Pick Three" Identification Procedure ..................... 211 Mangum's Sharpening Memory .................................................... 213
XXXI. THE CONSPIRACY TO CONCEAL IDENTIFICATION PROCEDURE RESULTS IN VIOLATION OF N.C.G.S. § 15A-282 .....................................................................................................214 XXXII. APRIL 5TH: A SEALED DNA ORDER WAS ISSUED AND RYAN'S SEARCH WARRANT AFFIDAVIT WAS UNSEALED. .............................................................................................219 A. B. Nifong Obtained an Order Authorizing DNA Evidence Transfer to DNASI ......................................................................... 219 The Same Day, the McFadyen Search Warrant was Unsealed and Duke Unilaterally Suspended Ryan from School .............................................................................................220 Contemporaneously with Ryan's Suspension, Defendants Moneta and Brodhead Respond Differently to an Actually Threatening Student Email ............................................................. 222 Matthew Wilson and Breck Archer were also Subject to Sanctions when Other, Similarly Situated Students were not, and in Violation of the University's Student Bulletin.................... 224 The University-Student Contract Created by Duke University ....................................................................................... 229
C.
D.
E.
XXXIII. THE CONSPIRACY TO CONCEAL DNASI'S TEST RESULTS IN VIOLATION OF N.C.G.S. § 15A-282 ............................. 233
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A.
Pursuant to N.C.G.S. § 15A-282, Plaintiffs were Entitled to a Written Report of Every Test Conducted by DNASI with their DNA ....................................................................................... 236 Nifong, Gottlieb, Himan, Meehan, and Clark Developed a Novel Reporting Method that--by Design--Concealed Exculpatory Test Results................................................................ 238 Use of the DNASI Report to Harass and Intimidate the Most Important Fact Witness for all Three Defendants .......................... 239 Nifong and City Defendants Manipulate the Media to Create Public Perception that the DNA Test Results Implicated Plaintiffs or Their Teammates ........................................................ 241 Levicy's False Claims of Corroborating Evidence ........................ 243 Theresa Arico Publicly Ratified Levicy's Fabricated SANE Evidence ......................................................................................... 246 Levicy Produced Falsified Medical Records to Support her Fabrications .................................................................................... 246
B.
C. D.
XXXIV. THE SANE CONSPIRACY .......................................................................... 242 A. B. C.
XXXV. APRIL 10TH --14TH: NIFONG DETERMINES TO INDICT TO WIN ELECTION ................................................................................ 252 A. B. C. April 10th: Two DNA Labs Reports, No DNA Match .................. 252 April 11, 2006: The NCCU Forum ............................................... 254 April 12, 2006: Nifong Sought Sealed Indictments to Further Stigmatize the Plaintiffs .................................................... 257
XXXVI. APRIL 14TH: GOTTLIEB, HIMAN, AND DUKE POLICE CONSPIRE TO FORCE THE WAIVER OF PLAINTIFFS' AND THEIR TEAMMATES' ASSERTED CONSTITUTIONAL RIGHTS ................................................................. 258 A. B. Fraudulent Email Sent Through Breck Archer's Email Account .......................................................................................... 259 Gottlieb and Himan, Aided by the Duke Police Department, Enter Dorms to Obtain Information from Represented Lacrosse Players ............................................................................. 259
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C.
Duke Facilitated and Condoned the Investigators' Warrantless Entry into the Dorms and the Custodial Interrogation of Represented Team Members................................ 260
XXXVII. THE CHAIRMAN'S DIRECTIVE SPAWNED AN "AD HOC" INVESTIGATIVE COMMITTEE TO IMPEACH PLAINTIFFS' CHARACTER AND CREDIBILITY AS PUTATIVE WITNESSES, CRIMINAL DEFENDANTS, AND CIVIL PLAINTIFFS. ...................................................................... 261 XXXVIII. THE CHAIRMAN'S CMT DIRECTED THE UNIVERSITY TO VIOLATE FEDERAL BANKING AND EDUCATIONAL PRIVACY LAWS IN FURTHERANCE OF CONSPIRACY TO CONVICT PLAINTIFFS ......................................... 269 XXXIX. THE CHAIRMAN AND THE DUKE CMT DEFENDANTS DIRECTED UNIVERSITY'S VIOLATIONS OF FEDERAL ELECTIONS LAWS IN FURTHERANCE OF THE CONSPIRACY TO CONVICT PLAINTIFFS ......................................... 275 A. B. Plaintiffs' Voter Registration Campaign ........................................ 276 The Chairman Participated in the University's Cover-Up of its Federal Election Law Violations ............................................... 279
XL. THE CITY OF DURHAM AND DUKE UNIVERSITY FORMALLY AND PUBLICLY RATIFIED THEIR OFFICERS AND EMPLOYEES CONDUCT ....................................................................... 280 XLI. NIFONG HAS BEEN PROFESSIONALY REBUKED, DISBARRED, CONVICTED AND INCARCERATED FOR HIS ACTS IN FURTHERANCE OF THE CONSPIRACIES ALLEGED HERE ..................................................................................... 283 A. North Carolina's Attorney General Professionally AACondemned Nifong's Acts in Furtherance of the Conspiracies Alleged Herein.......................................................... 283 The State Bar of North Carolina Disbarred Nifong ....................... 284 The State Judiciary Charged, Tried, Convicted, and Incarcerated Nifong for his Acts in Furtherance of the DNA Conspiracy ......................................................................................284
B. C.
CAUSES OF ACTION .................................................................................................. 286 FIRST CAUSE OF ACTION: ......................................................................................... 286
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SEARCH AND SEIZURE IN VIOLATION OF 42 U.S.C. § 1983 & CONSPIRACY .......................................................................... 286 SECOND CAUSE OF ACTION: .................................................................................... 289 SEARCH AND SEIZURE IN VIOLATION OF 42 U.S.C. § 1983 & CONSPIRACY .......................................................................... 289 THIRD CAUSE OF ACTION: ....................................................................................... 291 ABUSE OF PROCESS AND CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983 ............................................................................ 291 FOURTH CAUSE OF ACTION: .................................................................................... 294 DEPRIVATION OF PROPERTY IN VIOLATION OF 42 U.S.C. § 1983 ............................................................................................. 294 FIFTH CAUSE OF ACTION:......................................................................................... 298 FALSE PUBLIC STATEMENTS IN VIOLATION OF 42 U.S.C. §1983 ..............................................................................................298 SIXTH CAUSE OF ACTION: ........................................................................................ 305 MANUFACTURE OF FALSE INCULPATORY EVIDENCE & CONSPIRACYIN VIOLATIONOF 42 U.S.C. § 1983 ................. 305 SEVENTH CAUSE OF ACTION: ................................................................................. 308 CONCEALMENT OF EXCULPATORY EVIDENCE & CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983 ............... 308 EIGHTH CAUSE OF ACTION: ..................................................................................... 310 INTERFERING WITH RIGHT ENGAGE IN POLITICAL PROCESSES IN VIOLATION OF 42 U.S.C. § 1983 AND CONSPIRACY ...............................................................................310 NINTH CAUSE OF ACTION: ....................................................................................... 311 RETALIATION IN VIOLATION OF 42 U.S.C. § 1983 & CONSPIRACY ...............................................................................311 TENTH CAUSE OF ACTION:....................................................................................... 314 DEPRIVATION OF THE PRIVILEGES AND IMMUNITIES OF NORTH CAROLINA CITIZENS IN VIOLATION OF 42 U.S.C. §1983 .................................................................................. 314 ELEVENTH CAUSE OF ACTION: ............................................................................... 315
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FAILURE TO PREVENT DEPRIVATION OF CONSTITUTIONAL RIGHTS IN VIOLATION OF 42 U.S.C. § 1983 ................................................................................. 315 TWELFTH CAUSE OF ACTION: ................................................................................. 322 MONELL LIABILITY FOR VIOLATIONS OF 42 USC § 1983 ........... 322 A. B. City and University Policies Were the Moving Force Behind the Deprivations of Plaintiffs' Constitutional Rights ..................... 322 Officials with Final Policymaking Authority Participated in or Directed the Violations of Plaintiffs' Constitutional Rights ............................................................................................. 329 Duke University and City of Durham Officials with Final Policymaking Authority with Respect to the Investigation Delegated Some or All of their Policymaking Authority But Failed to Exercise Adequate Supervising Responsibility over the Delegate's Exercise of said final policymaking authority. ........................................................................................ 331
C.
THIRTEENTH CAUSE OF ACTION: ........................................................................... 346 SUPERVISORY LIABILTIY FOR VIOLATIONS OF 42 U.S.C. § 1983 ................................................................................................346 A. B. The Failure to Control and Supervise the Investigation Caused the Violations of Plaintiffs' Constitutional Rights. ........... 346 Durham Police Supervising Defendants' Failure to Control and Supervise Gottlieb Led to Violations of Plaintiffs' Constitutional Rights. ..................................................................... 349 The Durham Supervising Defendants' Failure to Control and Supervise Addison Led to the Violations of Plaintiffs' Constitutional Rights ...................................................................... 351 The Durham Police Supervising Defendants' Failure to Control and Supervise Defendant Michael Led to Violations of Plaintiffs' Constitutional Rights ................................................ 353
C.
D.
FOURTEENTH CAUSE OF ACTION: ......................................................................... 356 FAILURE TO TRAIN IN VIOLATION OF 42 U.S.C. §1983 ................ 356 FIFTEENTH CAUSE OF ACTION: .............................................................................. 360 CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983 .......................... 360
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SIXTEENTH CAUSE OF ACTION: .............................................................................. 365 CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985 .......................... 365 SEVENTEENTH CAUSE OF ACTION: ....................................................................... 369 FAILURE TO INTERVENE IN VIOLATION OF 42 U.S.C. § 1986 ................................................................................................369 EIGHTEENTH CAUSE OF ACTION:........................................................................... 375 COMMON LAW OBSTRUCTION OF JUSTICE & CONSPIRACY ...............................................................................375 NINETEENTH CAUSE OF ACTION:........................................................................... 379 COMMON LAW ABUSE OF PROCESS & CONSPIRACY ................. 379 TWENTIETH CAUSE OF ACTION:............................................................................. 381 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND CONSPIRACY ..................................................................... 381 TWENTY-FIRST CAUSE OF ACTION:....................................................................... 384 BREACH OF CONTRACT ...................................................................... 384 TWENTY-SECOND CAUSE OF ACTION: ................................................................. 386 INVASION OF PRIVACY ....................................................................... 386 TWENTY-THIRD CAUSE OF ACTION: ..................................................................... 387 BREACH OF fiduciary duty & AIDING AND ABETTING ...................387 TWENTY-FOURTH CAUSE OF ACTION: ................................................................. 391 FRAUD ..................................................................................................... 391 TWENTY-FIFTH CAUSE OF ACTION: ...................................................................... 394 NEGLIGENCE (DURHAM POLICE) ..................................................... 394 TWENTY-SIXTH CAUSE OF ACTION: ...................................................................... 395 NEGLIGENT HIRING, RETENTION,SUPERVISION, TRAINING & DISCIPLINE (DURHAM POLICE) ..................... 395 TWENTY-SEVENTH CAUSE OF ACTION: ............................................................... 398 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (DURHAM PD) ............................................................................. 398 TWENTY-EIGHTH CAUSE OF ACTION:................................................................... 399
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS .................. 399 TWENTY-NINTH CAUSE OF ACTION: ..................................................................... 401 NEGLIGENCE (DUKE POLICE) ............................................................ 401 THIRTIETH CAUSE OF ACTION: ............................................................................... 404 NEGLIGENCE (DUKE) ........................................................................... 404 THIRTY-FIRST CAUSE OF ACTION: ......................................................................... 409 NEGLIGENCE (SANE)............................................................................ 409 THIRTY-SECOND CAUSE OF ACTION:.................................................................... 410 NEGLIGENT HIRING, RETENTION, SUPERVISION, TRAINING & DISCIPLINE (SANE) ........................................... 410 THIRTY-THIRD CAUSE OF ACTION: ....................................................................... 413 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (SANE) ...........................................................................................413 THIRTY-FOURTH CAUSE OF ACTION:.................................................................... 414 NEGLIGENCE (DNASI) .......................................................................... 414 THIRTY-FIFTH CAUSE OF ACTION:......................................................................... 415 NEGLIGENT SUPERVISION, HIRING, TRAINING, DISCIPLINE, AND RETENTION (DNASI) ................................ 415 THIRTY-SIXTH CAUSE OF ACTION: ........................................................................ 416 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (DNASI) ......................................................................................... 416 THIRTY-SEVENTH CAUSE OF ACTION: ................................................................. 417 NEGLIGENCE (DUKE POLICE) ............................................................ 417 THIRTY-EIGHTH CAUSE OF ACTION: ..................................................................... 419 NEGLIGENT SUPERVISION (DUKE POLICE) ................................... 419 THIRTY-NINTH CAUSE OF ACTION: ....................................................................... 420 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (DUKE POLICE) ........................................................................... 420 FORTIETH CAUSE OF ACTION: ................................................................................ 422 NEGLIGENT ENTRUSTMENT (DUKE POLICE) ................................ 422
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FORTY-FIRST CAUSE OF ACTION: .......................................................................... 425 VIOLATIONS OF ARTICLE I AND ARTICLE IX OF THE NORTH CAROLINA CONSTITUTION AND CONSPIRACY ...............................................................................425 RULE 9(j) PRECERTIFICATION ................................................................................. 426 JURY DEMAND ........................................................................................................... 426 PRAYER FOR RELIEF .................................................................................................. 427 CERTIFICATE OF SERVICE .................................................................................... 429
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UMMARY OF THE ACTION 1. This action arises out of a combination of actors and entities that we will call the Consortium. Consortium members include the Chairman of Duke University's Board of Trustees, the University, its faculty, and its SANE program; the City of Durham and its police department; a forensic DNA lab, DNASI, its controlling shareholder, and its lab director; and a (now) disbarred prosecutor. 2. The Consortium's ultimate objective was to railroad the Plaintiffs and their 44 teammates into convictions as either principals or accomplices to a horrific, violent crime they knew never happened. The conspiracy involved multiple dimensions, including: x A conspiracy to abuse the Nontestimonial Identification Order ("NTID Order") process; x x x x x x A conspiracy to abuse the Search Warrant process; A conspiracy to conceal exculpatory police witness testimony; A conspiracy to conceal exonerating forensic DNA evidence; A conspiracy to conceal exonerating forensic SANE evidence; A conspiracy to manufacture inculpatory forensic SANE evidence; and A conspiracy to stigmatize the Plaintiffs by subjecting them to public outrage, public condemnation, and infamy in the eyes of millions of people for crimes that the Defendants named in this action knew did not happen.
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.
The cumulative effect of the willful, malicious, and calculating manner in which Nifong, Gottlieb, the Chairman, his Crisis Management Team, the SANE Defendants, the DNASI Defendants, and their co-defendants participated in these unlawful conspiracies over the course of more than a year--even as national news cameras were upon them--shocks the contemporary conscience.
4.
Each dimension of the conspiracy was facilitated by the Defendants' refusal to intervene to prevent the harms conspired to be done to Plaintiffs, when they knew of the wrongs conspired to be done to them, and had the power to prevent or aid in preventing them. They `turned a blind eye' and did nothing. So great was the damage done to these young men that even the unequivocal exoneration after a re-investigation led by two of this State's most revered prosecutors could not repair it.
5.
The word "innocent" does not trip lightly off the tongue of a prosecutor. Special Prosecutors James Coman and Mary Winstead, with State Bureau of Investigation ("SBI") Agents DeSilva and Tart, sought the truth, found the truth, and insisted upon a declaration of innocence. On April 11, 2007, the North Carolina Attorney General declared that the horrific rape and sexual offense allegations that transfixed the nation did not happen. For that and for the tireless work of special prosecutors Coman and Winstead, SBI Agents DeSilva and Tart, Ryan, Matt, and Breck are enormously grateful. This case is not about them, nor is it about the justice system in North Carolina. This case is a reckoning; it is an accounting of those who were willing to obstruct and pervert justice to serve their own selfish aims, those who had the power to intervene and did not, and the damage they have done.
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HE PARTIES I. 6. 7. 8. 9. THE PLAINTIFFS
Plaintiff Ryan McFadyen is a citizen and resident of New Jersey. Plaintiff Matthew Wilson is a citizen and resident of North Carolina. Plaintiff Breck Archer is a citizen and resident of New York. When Crystal Mangum falsely claimed that she was sexually assaulted, the Plaintiffs were students in good standing at Duke University and members of the 2005-2006 Duke University Men's Lacrosse Team.
II.
THE DEFENDANTS A. Duke University Defendants
10.
DUKE UNIVERSITY. Duke University is an educational institution formed under the laws of North Carolina, with its primary place of business in Durham, North Carolina. At all times relevant to this action, the Defendants identified herein as the Duke Police Department Defendants, Duke CMT Defendants, Duke Officials Defendants, Duke Administrator Defendants, and SANE Defendants were acting as constituent entities, agents and/or employees in the course and scope of their agency or employment with Duke University, and in furtherance of the University's business interests. Further, at all times relevant to this action, Plaintiffs were enrolled as students at Duke University pursuant to enrollment agreements entered into between them.
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. 11.
Duke Police Department Defendants
DUKE UNIVERSITY POLICE DEPARTMENT. The Duke Police Department is a North Carolina law enforcement agency authorized and existing under the North Carolina General Statutes. Duke Police officers are commissioned under North Carolina General Statutes without limitation; they have the full range of police authority that the State grants to all other municipal law enforcement officers in their respective jurisdictions. The Duke Police Department has primary police jurisdiction over, among other things, crimes reported to have occurred on property owned or controlled by Duke University, including adjacent streets and roadways, within the Durham city limits. The Duke Police Department's duties include providing comprehensive law enforcement services throughout its territorial jurisdiction including, but not limited to the academic campus, a large medical center complex, an 8,000 acre research forest, and all property owned or controlled by Duke University within the Durham city limits. The Duke Police Department has 176 authorized positions, including 67 commissioned Police Officers, 83 Security Officers, 12 Emergency Communications and Records Officers, a 24-hour 911 center, Criminal Investigations Unit, and various administrative support personnel. 2. Duke Police Supervising Defendants
12.
AARON GRAVES is, and at all times relevant to this action, was Duke University's Associate Vice President for Campus Safety and Security. In that capacity, Graves was a supervisory official with final policymaking authority with respect to the Duke Police Department. At all relevant times to this action, Graves' duties included developing and supervising the implementation of a strategic law enforcement plan
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or the Duke Police Department's territorial jurisdiction and strategies and initiatives for enhanced safety and security at the University and DUHS. Graves is, and at all times relevant to this action, was a citizen and resident of North Carolina. 13. ROBERT DEAN was, at all times relevant to this action, the Director and Chief of the Duke Police Department. In that capacity, Dean was a University supervisory official with final policymaking authority with respect Duke Police Department activities and personnel, including the investigation of Mangum's claims. Dean supervised the dayto-day management of the Duke Police Department, and directed the Department's management team of Majors, including the Commander of the Duke Police Department's Uniform Patrol Division, the Commander of the Duke Police Support Division, and the Commander of Medical Center Affairs. Dean is, and at all times relevant to this action, was a citizen and resident of North Carolina. 14. LEILA HUMPHRIES was, at all times relevant to this action, the Assistant Police Chief for the Duke Police Department. In that capacity, Humphries was a supervisory University official with final policymaking authority with respect to the activities of the Duke Police Department. Humphries is, and at all times relevant to this action, was a citizen and resident of North Carolina. 15. PHYLLIS COOPER is, and at all times relevant to this action, was a Major for the Duke Police Department, acting as the Department's PIO Commander and Commander for the Investigations Division. In that capacity, Cooper was a supervisory University official with final policymaking authority with respect to the investigation of Mangum's false accusations. Cooper was, at all relevant times, one of the Department's liaisons to CrimeStoppers, and was responsible for obtaining and
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racking student citations from Durham and state law enforcement authorities. Cooper is, and at all times relevant to this action, was a citizen and resident of North Carolina. 16. WILLIAM F. GARBER, II is, and at all times relevant to this action, was the Medical Center Affairs Manager for the Duke Police Department. In that capacity, Garber was a supervisory University official with final policymaking authority with respect to the investigation of Mangum's false accusations. Garber's primary responsibilities include management of the police and security personnel within the Duke University Medical Center campus. Upon information and belief, Garber is, and at all times relevant to this action, was a citizen and resident of North Carolina. 17. JAMES SCHWAB was, and at all time relevant to this action, a fully commissioned North Carolina law enforcement officer, with the rank of Major for the Duke Police Department. In that capacity, Schwab was a supervisory University official with final policymaking authority with respect to the investigation of Mangum's false accusations. Upon information and belief, Schwab is, and at all times relevant to this action, was a citizen and resident of North Carolina. 18. JOSEPH FLEMING is, and at all times relevant to this action, was a fully commissioned North Carolina law enforcement officer, with the rank of Lieutenant for the Duke Police Department, serving as the Department's Supervisor of Investigations. In that capacity, Fleming was an official with final policymaking authority with respect to the investigation of Mangum's false accusations. At all times relevant to this action, Defendant Smith reported directly to Lt. Fleming. Upon information and belief, Fleming is, and at all times relevant to this action, was a citizen and resident of North Carolina.
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9.
JEFFREY O. BEST is, and at all times relevant to this action, was a fully commissioned North Carolina law enforcement officer, with the rank of Lieutenant for the Duke Police Department and the Department's Commander of the Duke Patrol Division "B" Squad. Best's duties included supervising and directing the activities of the "B" Squad of the Duke Police Department's Patrol Division. In that capacity, Best was a supervisor with official policymaking authority with respect to the Duke Police Department's investigation of Mangum's allegations. Best was the Duke Police Watch Commander on the evening and early morning hours of March 14, 2006, and supervised Duke Police officers' activities with respect to the investigation of Mangum's claims thereafter. Upon information and belief, Best is, and at all times relevant to this action, was a citizen and resident of North Carolina. 3. Duke Police Investigator Defendants
20.
GARY N. SMITH is, and at all times relevant to this action, was a fully commissioned North Carolina law enforcement officer, with the rank of First Sergeant, serving as an Investigator in the Duke Police Department. In that capacity, Smith was a supervisor with official policymaking authority for Duke Police Department's investigation of Mangum's false accusations. Smith is a certified criminal investigator and one of the Department's liaisons to CrimeStoppers. Upon information and belief, Smith is, and at all times relevant to this action, was a citizen and resident of North Carolina.
21.
GREG STOTSENBERG is, and at all times relevant to this action, was a fully commissioned North Carolina law enforcement officer, with the rank of First Sergeant in the Duke Police Department's "D" Patrol Squad. In that capacity, Stotsenberg was
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supervisor with final policymaking authority over Duke University's investigation of Mangum's false accusations. Stotsenberg's duties include conducting and coordinating investigative functions of the Duke Police Department. In addition, Stotsenberg was, at all relevant times, one of the Department's liaisons to CrimeStoppers. Upon information and belief, Stotsenberg is, and at all times relevant to this action, was a citizen and resident of North Carolina. 4. 22. The "Crisis Management Team"
ROBERT K. STEEL ("The Chairman") is, and, at all times relevant to this action, was acting as the Chairman of the Executive Committee of the Duke University Board of Trustees; a University official with supervisory and policymaking authority with respect to all of Duke University's affairs, its employees, agents and constituent entities. Steel directed the University's ad-hoc "Crisis Management Team" ("CMT") from its formation on March 25, 2006 onward. The CMT was formed to direct the University's conduct in the investigation of Mangum's false allegations. From time to time, Steel directed the conduct of the Duke Police Department in the investigation of Mangum's false allegations of sexual assault, and in this capacity, acted under color of state law. Upon information and belief, Steel is, and at all times relevant to this action, was a citizen and resident of Connecticut.
23.
RICHARD H. BRODHEAD, Ph.D. is, and at all times relevant to this action, was acting as the President of Duke University. As President, Brodhead was the Chief Educational and Administrative Officer of the University; a University official with supervisory and policymaking authority with respect to all of Duke University's employees, agents, and constituent entities. Brodhead reports directly to the
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hairman of the Board of Trustees. His responsibilities include supervising, managing, and governing the University; interpreting and carrying out the policies of the Board; presiding over meetings of the University faculty, where he enjoys unbridled authority to overrule the decisions of the faculty, so long as he states his reasons for doing so; and has exclusive standing to recommend individuals to the Trustees to hold the other offices of the University. Brodhead was a member of the University's Crisis Management Team. Upon information and belief, Brodhead is, and at all times relevant to this action, was a citizen and resident of North Carolina. 24. PETER LANGE, Ph.D. is, and at all times relevant to this action, was acting as the University's Provost; a University official with supervisory and policymaking authority with respect to all of Duke University's faculty, employees, agents, and constituent entities. Lange is the University's Chief Academic Officer; his duties include directing the University's academic operations and overseeing the University's teaching and research missions. Lange was a member of the University's Crisis Management Team. Upon information and belief, Lange is, and at all times relevant to this action, was a citizen and resident of North Carolina. 25. TALLMAN TRASK, III, Ph.D. is, and at all times relevant to this action, was acting as the University's Executive Vice President; a University official with supervisory and policymaking authority with respect to all of Duke University's employees, agents, and constituent entities. Trask is the University's Chief Financial and Administrative Officer; his duties include directing the University's financial operations and overseeing the University's central administrative services and capital projects. Trask was a member of the University's Crisis Management Team. Upon
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nformation and belief, Trask is, and at all times relevant to this action, was a citizen and resident of North Carolina. 26. JOHN BURNESS is, and at all times relevant to this action, was acting as the University's Senior Vice President for Public Affairs and Government Relations; a University official with supervisory and policymaking authority with respect to all of Duke University's interactions with local and national media, elected officials, community leaders, the Trustees, Deans, Faculty, The Chronicle, and student leaders. Burness was directly responsible for the Offices of News and Communications, Community Affairs, and Government Relations in Durham, Burness' duties include acting as the Official Spokesperson for the University, the University's liaison to the Duke-Durham Partnership Campaign, and as primary liaison to the City of Durham and the Durham Police Department. Burness was a member of the University's Crisis Management Team. Upon information and belief, Burness is, and at all times relevant to this action, was a citizen and resident of North Carolina. 27. LARRY MONETA, Ed.D., is, and at all times relevant to this action, was acting as Vice President for Student Affairs. In that capacity, Moneta served in a supervisory official with final policymaking authority with respect to issues relating to the University's undergraduate students, Judicial Affairs employees, agents, and constituent entities. Moneta's duties include supporting undergraduate students in their academic, social, personal, physical, and emotional needs. Moneta was responsible for the welfare of all students, and for coordinating the University's emergency responses. Moneta was a member of the University's Crisis Management
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eam. Upon information and belief, Moneta is, and at all times relevant to this action, was a citizen and resident of North Carolina. 28. VICTOR J. DZAU, M.D. is, and at all times relevant to this action, was acting as the Chancellor for Health Affairs, and President and Chief Executive Officer of Duke University Health Systems, Inc. In that capacity, Dzau was supervisory official with final policymaking authority with respect to Duke University Health Systems, Inc., ("DUHS"), all of its employees, agents, and constituent entities. Dzau's duties include oversight of DUHS entities' financial affairs, their prompt disclosure of threats to the health, safety, and welfare of the public created by DUHS's medical professionals, and those special powers and duties that are assigned to him by the President in his discretion. Dzau was a member of the University's Crisis Management Team. Upon information and belief, Dzau is, and at all times relevant to this action, was a citizen and resident of North Carolina. 29. ALLISON HALTOM, now retired from the University, was, at all times relevant to this action, acting as the University Secretary. At all times relevant to this action, Haltom's duties included the maintenance of all records of the University. Further, Haltom had all of those powers and duties specifically granted to her by President Brodhead, in his sole discretion, including the duty to convey to the Board of Trustees information designated by the Chairman to be conveyed. Haltom was a member of the University's Crisis Management Team. Upon information and belief, Haltom is, and at all times relevant to this action, was a citizen and resident of North Carolina.
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. 30.
Duke Administrator Defendants
KEMEL DAWKINS is, and at all times relevant to this action, was acting as Vice President for Campus Services; a University official with supervisory and policymaking authority with respect to, among other things, the University's Duke Card Office and Duke Police. Dawkins reported directly to Duke University's Executive Vice President, Defendant Trask. Dawkins is, and at all times relevant to this action, was the direct supervisor of Graves and Drummond. Dawkins also attended command staff retreats with the Duke Police Department. Dawkins is, and at all times relevant to this action, was a citizen and resident of North Carolina.
31.
SUZANNE WASIOLEK is, and at all times relevant to this action, was the Assistant Vice President for Student Affairs and Dean of Students. Wasiolek received her J.D. from N.C.C.U. and worked as a practicing attorney for 9 months. Upon information and belief, she has no experience in the practice of criminal law in North Carolina or any other jurisdiction. Her duties include assisting Vice President Moneta in carrying out his obligations to coordinate the University's emergency responses. Upon information and belief, Wasiolek is, and at all times relevant to this action, was a member of the North Carolina Bar and a citizen and resident of North Carolina.
32.
STEPHEN BRYAN is, and at all times relevant to this action, was acting as the Associate Dean of Students and Director of Judicial Affairs; a University official with supervisory and policymaking authority with respect to Duke University's disciplinary processes and the collection of disciplinary data. Bryan's responsibilities include actively collecting the Duke and Durham Police reports for indications of student misconduct, imposing discipline--unilaterally or through a student Judicial
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oard he selects and largely controls; keeping records of student incidents of misconduct; reporting those statistics to the Durham community and other agencies; and, relevant to the instant action, compiling the misleading and unreliable "data" upon which the Lacrosse Ad Hoc Review Committee drew its conclusions that misconduct on the part of members of the lacrosse team was disproportionate to that of other groups and the student body generally. Upon information and belief, Bryan is, and at all times relevant to this action, was a citizen and resident of North Carolina. 33. MATTHEW DRUMMOND is, and at all times relevant to this action, was acting as the Senior Manager IT in Auxiliary Services and Head of the University's Duke Card Office; a University official with supervisory and policymaking authority with respect to the administration and protection of University students' Duke Card financial accounts and records. Upon information and belief, Drummond is, and at all times relevant to this action, was a citizen and resident of North Carolina. 6. 34. The SANE Defendants
DUKE UNIVERSITY HEALTH SYSTEMS, INC. ("DUHS") is a corporation formed under the laws of the State of North Carolina, with its principal place of business in Durham, North Carolina. At all times relevant to this action, DUHS was a constituent entity of Duke University, and operated Duke University Medical Center ("DUMC") and the Durham Center Access. DUHS was an independent contractor retained by the City of Durham to provide forensic medical evidence collection and analysis services with respect to the investigation of Mangum's false accusations; in this capacity, DUHS, its supervisors, employees, and agents were acting under color of state law.
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5.
PRIVATE DIAGNOSTIC CLINIC, PLLC ("PDC") is a corporation formed under the laws of the State of North Carolina, with its principal place of business in Durham, North Carolina. Its members are healthcare providers with privileges at DUHS facilities. At all times relevant to this action, the PDC was an independent contractor retained by the City of Durham and/or Duke University to provide competent medical personnel to administer and supervise the provision of forensic medical evidence collection and analysis services in the investigation of Mangum's accusations; in this capacity, the PDC acted under color of state law.
36.
JULIE MANLY, M.D. is, and at all times relevant to this action, was acting as a member of the DUHS House Staff and an employee physician of the PDC and Duke University, with supervisory and policymaking authority with respect to Levicy, Arico, DUHS and Duke University record-keeping personnel. At all times relevant to this action, Manly was retained by the City of Durham to provide and/or supervise forensic medical evidence collection and analysis services with respect to the police investigation of Mangum's accusations, and in that capacity, Manly acted under color of state law. Manly is, and at all times relevant to this action, was a citizen and resident of North Carolina.
37.
THERESA ARICO, R.N., is, and at all times relevant to this action, was acting as a clinical nurse employed by DUHS as Supervisor of DUMC's SANE services, with supervisory and policymaking authority with respect to Duke University's SANE services and personnel. In that capacity, Arico supervised Levicy and the provision SANE services, record keeping, and witness services provided by Levicy and Manly in the investigation of Mangum's allegations. In that capacity, Arico was acting
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nder color of state law. Arico is, and at all times relevant to this action, was a citizen and resident of North Carolina. 38. TARA LEVICY, R.N. was, at all times relevant to this action, acting as a member of the DUHS and Duke University nursing staff and the DUHS SANE program as a SANE-in-Training. Levicy was retained by the City of Durham, to provide forensic medical evidence collection and analysis services in the investigation of Mangum's false accusations; and, in that capacity, Levicy acted under color of state law. Upon information and belief, Levicy is a citizen and resident of New Hampshire. At all times relevant to this action, Levicy was a citizen and resident of North Carolina. _________________ 39. DUKE UNIVERSITY DEFENDANTS. Collectively, Duke University, Duke CMT Defendants, Duke Police Department Defendants, Duke Officials Defendants, Duke Administrator Defendants, and SANE Defendants, are referred to herein as the "Duke University Defendants." 40. CRISIS MANAGEMENT TEAM DEFENDANTS. Collectively, Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, and Haltom, are referred to herein as the "CMT Defendants." 41. DUKE OFFICIALS DEFENDANTS. Collectively, Steel, the CMT Defendants, and the Duke Administrator Defendants, are referred to herein as the "Duke Officials Defendants." 42. SANE DEFENDANTS. Collectively, Levicy, Manly, Arico, PDC, DUHS, and Duke University, are referred to herein as the "SANE Defendants."
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3.
DUKE POLICE DEPARTMENT DEFENDANTS. Collectively, the Duke University Police Department, Duke Police Supervising Defendants, and the Duke Police Investigator Defendants, are referred to herein as the "Duke Police Department Defendants."
44.
DUKE POLICE SUPERVISING DEFENDANTS. Collectively, Brodhead, Trask, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, and Best, are referred to herein as the "Duke Police Supervising Defendants."
45.
DUKE POLICE INVESTIGATOR DEFENDANTS. Collectively, Smith and Stotsenberg are referred to herein as the "Duke Police Investigator Defendants."
46.
DUKE ADMINISTRATOR DEFENDANTS. Collectively, Dawkins, Wasiolek, Bryan, and Drummond, are referred to herein as the "Duke Administrator Defendants."
47.
DAY CHAIN OF COMMAND. Collectively, the individuals comprising the line of authority from Day to Steel, including Best, Smith, Fleming, Cooper, Humphries, Dean, Graves, Dawkins, Trask, Brodhead, and Steel, will be referred to herein as the "Day Chain of Command." B. City of Durham Defendants
48.
The CITY OF DURHAM (the "City") is a municipal corporation formed under the laws of the State of North Carolina. Upon information and belief, the City of Durham has waived its immunity from civil liability pursuant to N.C.G.S. § 160A-485 by, among other things, procuring a liability insurance policy or participating in a municipal risk-pooling scheme. The City of Durham operates the Durham Police
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epartment, which shares law enforcement authority in the City of Durham with the Duke University Police Department, pursuant to a statutory grant of authority and an agreement between the City of Durham and Duke University.
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