MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 336

BRIEF re #335 MOTION for Judgment on the Pleadings filed by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. (SUN, PAUL) Modified on 3/1/2013 to remove duplicate text. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

JOINT BRIEF IN SUPPORT OF
MOTION FOR JUDGMENT ON
THE PLEADINGS BY
DEFENDANTS TARA LEVICY,
GARY SMITH, DUKE
UNIVERSITY, AND DUKE
UNIVERSITY HEALTH
SYSTEM, INC.

Defendants Tara Levicy (“Nurse Levicy”), Gary Smith (“Officer Smith”),
Duke University (“Duke”), and Duke University Health System, Inc. (“DUHS”),
submit this brief in support of their motion for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Given the recent decision in
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012) (hereinafter the “Fourth Circuit
decision”), Nurse Levicy is entitled to judgment as a matter of law on Counts 1, 2,
and 18; Officer Smith is entitled to judgment as a matter of law on Count 2; and
Duke and DUHS are entitled to judgment as a matter of law on Count 32.
NATURE OF THE CASE AND STATEMENT OF THE FACTS
This action arises out of the investigation of members of the 2005-2006
Duke men’s lacrosse team stemming from allegations of rape made by a stripper
who performed at a party hosted by the team captains at the off-campus house they

rented. None of the Plaintiffs were charged or tried for any offense resulting from
the allegations. Nevertheless, Plaintiffs sued Duke, DUHS, certain Duke
employees (including Nurse Levicy and Officer Smith), the City of Durham and
associated individuals, and a DNA laboratory for purported violations of their legal
rights in connection with the investigation.
Nurse Levicy, Officer Smith, Duke, DUHS, and other defendants moved to
dismiss the claims against them, and the Court dismissed twenty-seven counts on
31 March 2011. (Order at 2, No. 1:07CV953 (M.D.N.C. Mar. 31, 2011)
(DE 187)). The Court allowed discovery to proceed against the Duke defendants
on two counts—Counts 21 (alleging breach of contract) and 24 (alleging fraud).
(Order at 9, No. 1:07CV953 (M.D.N.C. June 9, 2011) (DE 218)). The Court
stayed all proceedings, including discovery, with respect to the remaining twelve
counts, pending resolution of an interlocutory appeal by the City of Durham and its
officials. Id. Among the stayed counts were two claims brought under 42 U.S.C.
§ 1983 (Counts 1 and 2) against various combinations of the Durham-related
defendants, Nurse Levicy, and Officer Smith; a state law obstruction of justice
claim (Count 18) against Nurse Levicy and others; and a state law negligent
supervision claim (Count 32) against Duke and DUHS. Id. On 17 December
2012, the Fourth Circuit issued an opinion reversing, inter alia, the district court’s
denial of the Durham defendants’ motions to dismiss the federal claims against
2

them, including the § 1983 claims in Counts 1 and 2, and the state law obstruction
of justice claims against them in Count 18. Evans, 703 F.3d at 659.
QUESTIONS PRESENTED
1.

Whether Nurse Levicy is entitled to judgment as a matter of law on

Plaintiffs’ § 1983 claim in Count 1 given the Fourth Circuit’s holding that there
was no constitutional violation in the issuance of the non-testimonial order?
2.

Whether Nurse Levicy and Officer Smith are entitled to judgment as a

matter of law on Plaintiffs’ § 1983 claim in Count 2 given the Fourth Circuit’s
holding that there was no constitutional violation with respect to the search of
Ryan McFadyen’s dorm room and car?
3.

Whether Nurse Levicy is entitled to judgment as a matter of law on

Plaintiffs’ obstruction of justice claim in Count 18, which is based on her alleged
actions in aid of a criminal investigation, given the Fourth Circuit’s reasoning that
such a claim cannot be based on official investigative actions relating to a criminal
proceeding?
4.

Whether Duke and DUHS are entitled to judgment as a matter of law

on Plaintiffs’ negligent supervision claim in Count 32 because there is no
underlying claim remaining against Nurse Levicy?

3

STANDARD OF REVIEW
“A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed
under the same standard as a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss.” Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 723 (M.D.N.C.
2012). At the 12(c) stage, “the court is tasked with determining if the complaint
contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Guessford v. Pa. Nat’l Mut. Cas. Ins. Co., No. 1:12CV260,
2013 WL 170523, at *3 (M.D.N.C. Jan. 16, 2013) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation omitted)). The Court must consider the
facts alleged in the complaint to be true and draw all reasonable inferences in favor
of the nonmoving party. Mendenhall, 856 F. Supp. 2d at 723. However, the Court
“‘need not accept the legal conclusions drawn from the facts,’ and ‘need not accept
as true unwarranted inferences, unreasonable conclusions or arguments.’” Id.
(quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)). “The test
applicable for judgment on the pleadings is whether or not, when viewed in the
light most favorable to the party against whom the motion is made, genuine issues
of material fact remain or whether the case can be decided as a matter of law.”
Smith v. McDonald, 562 F. Supp. 829, 842 (M.D.N.C. 1983).

4

ARGUMENT
To state a claim under § 1983, Plaintiffs must adequately allege two
elements: (1) that Defendants “deprived [them] of a right secured by the
Constitution and laws of the United States”; and (2) that Defendants “deprived
[them] of this constitutional right under color of any [State] statute, ordinance,
regulation, custom, or usage.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970) (internal quotation omitted).
I.

NURSE LEVICY IS ENTITLED TO JUDGMENT AS A MATTER OF
LAW ON PLAINTIFFS’ § 1983 CLAIM BASED ON THE ISSUANCE OF
THE NON-TESTIMONIAL ORDER BECAUSE THE FOURTH CIRCUIT
HELD THAT THERE WAS NO CONSTITUTIONAL VIOLATION
ASSOCIATED WITH THE ISSUANCE OF THE NON-TESTIMONIAL
ORDER.
In Count 1 of their Second Amended Complaint, Plaintiffs assert a claim

under 42 U.S.C. § 1983 based on the allegation that they were subject to an illegal
seizure in violation of the Fourth and Fourteenth Amendments because the nontestimonial order (“NTO”)1 was not supported by probable cause. (Second Am.
Compl. ¶¶ 904-17). In light of the Fourth Circuit’s holding that Plaintiffs failed to
state a constitutional claim based on the seizure of evidence pursuant to the NTO,
Nurse Levicy is entitled to judgment as a matter of law on Count 1. See Evans,
1

Plaintiffs’ Second Amended Complaint refers to a Non-testimonial
Identification Order (“NTID Order”), whereas this Court’s Order on Defendants’
Motions to Dismiss refers to a Non-testimonial Order (“NTO”). This
memorandum uses the Non-testimonial Order (NTO) phrasing.
5

703 F.3d at 652. Given that Nurse Levicy is the only remaining defendant, this
Court can now dispose of Count 1 in its entirety.
Where Plaintiffs pleaded a § 1983 claim based on alleged false statements or
omissions in the NTO supporting affidavit, the Fourth Circuit applied the twoprong test set forth in Franks v. Delaware, 438 U.S. 154 (1978), to determine
whether Plaintiffs had stated a claim. See Evans, 703 F.3d at 649-50. To state a
constitutional violation under Franks, a plaintiff must allege (1) that the defendants
“knowingly and intentionally or with a reckless disregard for the truth either made
false statements in their affidavits or omitted facts from those affidavits, thus
rendering the affidavits misleading”; and (2) “that those false statements or
omissions are material, that is, necessary to a neutral and disinterested magistrate’s
authorization of the search.” Id. at 650 (internal quotations and alteration omitted).
According to the Fourth Circuit, in Count 1 Plaintiffs alleged four false
statements in the affidavit that satisfied the first prong of the Franks test:
(1) Crystal Mangum, the complaining witness, claimed she lost fingernails during
the alleged attack and police recovered fingernails during the search of the house
where the rape allegedly occurred; (2) the lacrosse players used aliases to conceal
their identities from Mangum and another dancer, Kim Pittman; (3) the players
tried to conceal their university and team affiliations from Mangum and Pittman;
and (4) at the party, a man held up a broomstick and told Mangum and Pittman,
6

“I’m going to shove this up you.” Id.
To determine whether the four false statements Plaintiffs pled were material
under the second prong of Franks, the Fourth Circuit set aside the allegedly false
material and considered a “corrected” version of the affidavit. See id. at 651-52.
As corrected, the affidavit contained (1) Mangum’s allegations that three white
males raped her at the party; (2) the fact that police found some of Mangum’s
belongings at the house where the alleged rape occurred; and (3) Nurse Levicy’s
corroborating statement that Mangum had “signs, symptoms, and injuries
consistent with being raped and sexually assaulted vaginally and anally.” Id. The
Fourth Circuit then analyzed “‘whether or not the corrected warrant affidavit
would’ provide adequate grounds for the search.” Id. at 651 (quoting Miller v.
Prince George’s Cnty., 475 F.3d 621, 628 (4th Cir. 2007)). The Fourth Circuit
concluded that the corrected affidavit contained “sufficient factual bases to
establish both probable cause that a rape was committed and ‘reasonable grounds’
that the named persons committed the rape, as required under the NTO statute.”
Id. Therefore, the false statements were not material under the Franks test, and
Plaintiffs could not state a constitutional violation based on the seizure of evidence
pursuant to the NTO. Id. at 652.
Furthermore, Nurse Levicy’s alleged involvement in the NTO process did
not provide any basis for the § 1983 claim that Plaintiffs asserted. First, as the
7

Fourth Circuit pointed out, “[t]he McFadyen complaint does not even mention the
nurse’s statements when detailing the false statements in the affidavits.” Id. at 650.
Second, Nurse Levicy’s alleged statement cannot constitute a deliberate falsehood
within the meaning of Franks given that “the truthfulness of a witness statement is
irrelevant as to whether affiants’ statements were truthful.” Id. (citing Franks, 438
U.S. at 171). The supporting affidavit for the NTO contains sufficient facts to
satisfy the “flexible standard” for probable cause “that simply requires ‘reasonable
ground for belief of guilt’ and ‘more than bare suspicion.’” United States v. Ortiz,
669 F.3d 439, 444 (4th Cir. 2012) (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)).
Because the Fourth Circuit has held that the seizure of evidence pursuant to
the NTO did not deprive Plaintiffs of a “right secured by the Constitution and laws
of the United States” as required to state a claim under § 1983, see Evans, 703 F.3d
at 652, Plaintiffs’ rights were not violated by these actions. Nurse Levicy cannot
be liable for a violation that did not occur, and she is therefore entitled to judgment
as a matter of law as to the § 1983 claim pleaded in Count 1.
II.

OFFICER SMITH AND NURSE LEVICY ARE ENTITLED TO
JUDGMENT AS A MATTER OF LAW ON PLAINTIFFS’ § 1983 CLAIM
BASED ON THE SEARCH OF RYAN MCFADYEN’S DORM ROOM
AND CAR.
In Count 2 of their Second Amended Complaint, Plaintiffs assert a claim
8

under 42 U.S.C. § 1983 for the allegedly unconstitutional search of Ryan
McFadyen’s dorm room and car pursuant to a warrant that was obtained based on
an allegedly false and misleading affidavit. (Second Am. Compl. ¶¶ 918-28).
Plaintiffs contend that Officer Smith is liable under § 1983 for “[standing by],
outside the door of McFadyen’s dorm room throughout the entire search and
[taking] no affirmative acts to intervene, aware that there was not probable cause to
believe the crimes alleged had been committed, much less that McFadyen had
committed them.” (Id. ¶ 922). Plaintiffs further allege that Nurse Levicy is liable
for “agree[ing] to act in concert with Nifong, Gottlieb and Himan by, among other
things, providing and/or ratifying the false claims relating to the forensic medical
evidence obtained in the SAE [sexual assault examination] that Levicy and Arico
falsely claimed was conducted by Levicy.” (Id. ¶ 925).
As a preliminary matter, Plaintiffs Matthew Wilson and Breck Archer lack
standing to assert a claim based on an alleged violation of Ryan McFadyen’s
constitutional rights. Evans, 703 F.3d at 652 n.8. Further, based on the Fourth
Circuit’s holding that the search of McFadyen’s dorm room did not violate
McFadyen’s constitutional rights, pursuant to Adickes, the § 1983 claim brought by
all three Plaintiffs fails as a matter of law. See id. at 654. Similarly, because
Plaintiffs did not allege that McFadyen’s car was searched, their claim that such a
search was unconstitutional fails. See id. at 653 n.9. Therefore, Count 2 can now
9

be dismissed as to the only remaining defendants, Officer Smith and Nurse Levicy.
A.

Plaintiffs Matthew Wilson And Breck Archer Lack Standing To
Assert A Claim Based On An Alleged Violation Of Ryan McFadyen’s
Constitutional Rights.

The Fourth Circuit held that Plaintiffs Matthew Wilson and Breck Archer
lacked standing to bring a § 1983 claim for the alleged unlawful search and seizure
of Ryan McFadyen’s dorm room and car. Id. at 652 n.8 (citing United States v.
Gray, 491 F.3d 138, 144 (4th Cir. 2007)). Accordingly, Officer Smith and Nurse
Levicy are entitled to judgment as a matter of law as against Wilson and Archer on
standing grounds.
B.

Plaintiffs’ Claim Based On The Search Of Ryan McFadyen’s Dorm
Room Fails As To Defendants Levicy And Smith Because There Was
No Constitutional Violation Associated With The Search.

Even if Plaintiffs Wilson and Archer did have standing to assert a claim
based on an alleged violation of Plaintiff McFadyen’s constitutional rights, all
three Plaintiffs’ claims would fail because the Fourth Circuit held that there was no
constitutional violation in connection with the search. See id. at 654. In view of
the Fourth Circuit’s conclusion, Officer Smith and Nurse Levicy are entitled to
judgment as a matter of law on Plaintiffs’ § 1983 claim based on the search of
McFadyen’s dorm room.
To evaluate the constitutionality of the search, the Fourth Circuit applied the
Franks test to the affidavit Officers Gottlieb and Himan submitted in support of the
10

search warrant for McFadyen’s dorm room and car. Id. at 652-54. The court
identified five false statements Plaintiffs sufficiently pled under the first prong of
the Franks analysis: the four false statements Plaintiffs pleaded as to the NTO
supporting affidavit, and “the additional statement as to the players’ use of jersey
numbers to hide their identities.” Id. at 653. The Fourth Circuit set aside these
five statements; as corrected, the affidavit included: (1) Mangum’s allegations;
(2) Nurse Levicy’s alleged statement; and (3) McFadyen’s email, sent only hours
after the alleged rape, describing plans to kill exotic dancers in his dorm room. Id.;
see also id. at 644 (quoting McFadyen’s email). The court concluded that “as
corrected, the affidavit still contains significant evidence that a rape was
committed,” id. at 653, and that the “corrected affidavit would provide adequate
support for a magistrate’s finding of probable cause,” id. at 654. Accordingly, any
alleged false statements in the affidavit were not material. Id. Because the
corrected affidavit was supported by probable cause, Plaintiffs’ constitutional
rights were not violated in connection with the search of McFadyen’s room and
car. Id.
1.

Officer Smith cannot be liable as a bystander for an alleged
constitutional violation that did not occur.

Plaintiffs’ claim as to Officer Smith is based on a theory of “bystander
liability.” See McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 933 (M.D.N.C.
11

2011). A police officer may be liable as a bystander under § 1983 only upon a
showing that, at the time the warrant was executed, the officer “(1) kn[ew] that a
fellow officer [wa]s violating an individual’s constitutional rights; (2) ha[d] a
reasonable opportunity to prevent the harm; and (3) [chose] not to act.” Id.
(quoting Randall v. Prince George’s Cnty., 302 F.3d 188, 202-04 (4th Cir. 2002)).
Because of the Fourth Circuit’s holding that there was no violation of McFadyen’s
constitutional rights based on the search of his dorm room, Evans, 703 F.3d at 654,
Plaintiffs cannot establish that Officer Smith’s actions satisfy the elements of a
bystander claim.
First, given that there was no violation of Plaintiffs’ constitutional rights,
Officer Smith could have had no basis for knowing that “a fellow officer [wa]s
violating an individual’s constitutional rights.” See McFadyen, 786 F. Supp. 2d at
933; see also Moore v. Cease, No. 703-CV-144, 2005 WL 5322794, at *17
(E.D.N.C. July 5, 2005) (unpublished) (dismissing § 1983 bystander liability claim
where “there was no constitutional violation for [defendant officer] to act upon”).
Second, Officer Smith could not have had a reasonable opportunity to prevent an
alleged constitutional violation that did not occur. See McFadyen, 786 F. Supp. 2d
at 933. Because the Fourth Circuit has concluded that Officers Himan and Gottlieb
committed no constitutional violation in executing the warrant, Evans, 703 F.3d at
654, Plaintiffs’ bystander liability claim against Officer Smith fails as a matter of
12

law. See Moore, 2005 WL 5322794, at *15, *17.
2.

Nurse Levicy cannot be liable for conspiring to violate
Plaintiffs’ constitutional rights where no such violation actually
occurred.

In order to succeed on a claim for civil conspiracy under § 1983, a plaintiff
must establish that the defendants “acted jointly in concert and that some overt act
was done in furtherance of the conspiracy which resulted in . . . deprivation of a
constitutional right.” Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421
(4th Cir. 1996) (emphasis added). A plaintiff cannot state a cause of action for
conspiracy where he “was subjected to no such deprivation.” See Carlyle v.
Sitterson, 438 F. Supp. 956, 963 (E.D.N.C. 1975). Plaintiffs allege that Nurse
Levicy acted in furtherance of a conspiracy among Nifong, Gottlieb, and Himan to
obtain the warrant for McFadyen’s dorm room using fabricated evidence and
thereby perform an unconstitutional search. (Second Am. Compl. ¶¶ 924-25).
According to Plaintiffs, Nurse Levicy “agreed to act in concert with Nifong,
Gottlieb and Himan” by allegedly providing the Durham police with false forensic
evidence and/or ratifying their false claims regarding the forensic evidence. (Id.
¶ 925).
However, in view of the Fourth Circuit’s holding that Plaintiffs could not
state a constitutional violation based on the search of McFadyen’s dorm room, see
Evans, 703 F.3d at 654, Plaintiffs cannot show any deprivation of a constitutional
13

right. See Carlyle, 438 F. Supp. at 964 (granting summary judgment for
defendants on civil conspiracy claim where “the plaintiff ha[d] failed to allege a
deprivation of a constitutional right, a necessary element in a civil rights action”).
If there was no constitutional violation in the execution of the search warrant,
Nurse Levicy’s alleged actions in helping to procure the warrant for that search
cannot, as a matter of law, support a § 1983 claim.
C.

Plaintiffs’ Claim Based On The Search Of Ryan McFadyen’s Car
Fails As To Defendants Levicy And Smith Because Plaintiffs Did Not
Allege That The Car Was Searched And Any Search Was
Constitutional.

The same warrant that authorized the search of Plaintiff McFadyen’s dorm
room also permitted the officers to search McFadyen’s car. Evans, 703 F.3d at 653
n.9. In Count 2, Plaintiffs further allege that the search of McFadyen’s car violated
their constitutional rights. (Second Am. Compl. ¶ 924). However, Plaintiffs do
not allege that McFadyen’s car was searched. (See id. ¶¶ 918-28). Noting this
deficiency, the Fourth Circuit held that Plaintiffs’ claim based on the search of the
vehicle must fail. Evans, 703 F.3d at 653 n.9. Because Plaintiffs alleged no
search, there could be no unconstitutional search. See, e.g., United States v.
Bellina, 665 F.2d 1335, 1343 (4th Cir. 1981) (discussing circumstances where
“there is no search and no unconstitutional intrusion”). For the same reason,
Plaintiffs’ claim based on the search of the car fails as to Nurse Levicy and Officer
14

Smith.
Even if Plaintiffs had alleged a search of McFadyen’s car, however, the
search would have been constitutional for the same reasons that the Fourth Circuit
held the search of his dorm room was constitutional. See supra section II.B. Thus,
in any event, Defendants Levicy and Smith are entitled to judgment as a matter of
law on Plaintiffs’ claim in Count 2 to the extent that it is based on a search of
McFadyen’s car.
III.

UNDER THE FOURTH CIRCUIT’S HOLDING IN EVANS, NURSE
LEVICY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON
PLAINTIFFS’ OBSTRUCTION OF JUSTICE CLAIM.
In Count 18, Plaintiffs allege that Nurse Levicy and others committed the

tort of obstruction of justice by “conspiring to manufacture and manufacturing
false and misleading forensic medical records and reports . . . with the knowledge
that these reports would be used to bring and maintain criminal prosecutions
against Plaintiffs.” (Second Am. Compl. ¶ 1193). This Court denied Officers
Himan and Gottlieb’s motion to dismiss Count 18. McFadyen, 786 F. Supp. 2d at
976. The Fourth Circuit reversed, holding that North Carolina would not recognize
a common law obstruction of justice claim “against a police officer for his actions
relating to a criminal proceeding.” Evans, 703 F.3d at 658. After the Fourth
Circuit’s decision, Count 18 remains pending as to Nurse Levicy and Defendants
Robert Steel, Richard Brodhead, Victor Dzau, John Burness, Duke, and DUHS.
15

Id.; McFadyen, 786 F. Supp. 2d at 976-77. Because Nurse Levicy’s alleged
actions involve only the collection of evidence in aid of the officers’ criminal
investigation,2 the Fourth Circuit’s reasoning applies and Nurse Levicy is likewise
entitled to judgment as a matter of law. See Evans, 703 F.3d at 658.
By Plaintiffs’ own admission, Nurse Levicy, a sexual assault nurse examiner
(“SANE”) trainee, “was retained by the City of Durham[] to provide forensic
medical evidence collection and analysis services in the investigation” of Crystal
Mangum’s allegation that she had been raped. (Second Am. Compl. ¶ 38). Under
North Carolina law, a SANE nurse must undergo specialized training. N.C. Gen.
Stat. § 143B-1200(i)(2). SANE nurses are specifically trained to collect evidence
of sex crimes—the state-approved programs provide training in the “skills,
procedures, and techniques necessary to conduct examinations for the purpose of
collecting evidence” from victims of sex crimes. Id. § 90-171.38(b) (emphasis
added); see also Second Am. Compl. ¶ 38. The investigation of reported crimes is
squarely a law enforcement function. See, e.g., Crawford v. Washington, 541 U.S.
36, 53 (2004) (noting that “investigative functions [are] associated primarily with
2

Defendants Steel, Brodhead, Dzau, and Burness intend to move for summary
judgment at the appropriate time given that Plaintiffs will be unable to point to any
evidence that the alleged conspiracy among those defendants actually resulted in
obstruction of justice. See McFadyen, 786 F. Supp. 2d at 976 (“It will ultimately
be Plaintiffs’ burden to establish actual obstruction of justice by these
Defendants . . . .”).
16

the police”).
The Fourth Circuit explained that “logic would seem to compel [the]
conclusion” that “criminal suspects (like the plaintiffs) cannot allege a commonlaw obstruction of justice claim against police officers based on how the officers
conduct a criminal investigation.” Evans, 703 F.3d at 658. By the same logic, a
SANE nurse cannot, as a matter of law, be held liable for obstruction of justice
based on how the nurse conducts a criminal investigation. See id. The actions
Plaintiffs allege as to Nurse Levicy in Count 18 involve solely her work in the
course of a criminal investigation. Specifically, Plaintiffs allege that Nurse Levicy
and others “obstructed justice by conspiring to manufacture and manufacturing
false and misleading forensic medical records and reports with respect to the SAE
conducted at DUHS.” (Second Am. Compl. ¶ 1193). SANE nurses create
“forensic medical records and reports” based on sexual assault examinations as
part of their work in collecting evidence in furtherance of criminal investigations.
See N.C. Gen. Stat. § 90-171.38(b). Because Plaintiffs’ allegations are directed at
such investigative work in aid of law enforcement, Nurse Levicy is entitled to
judgment as a matter of law on Count 18. See Evans, 703 F.3d at 658.

17

IV.

DEFENDANTS DUKE AND DUHS ARE ENTITLED TO JUDGMENT
AS A MATTER OF LAW ON PLAINTIFFS’ NEGLIGENT HIRING,
RETENTION, SUPERVISION, TRAINING, AND DISCIPLINE CLAIM
BECAUSE NO CLAIM REMAINS AGAINST NURSE LEVICY.
In Count 32 of their Second Amended Complaint, Plaintiffs allege that

Defendants Arico, Manly, Private Diagnostic Clinic, PLLC, Duke, and DUHS are
liable in negligence based on their allegedly inadequate supervision of Nurse
Levicy. (Second Am. Compl. ¶¶ 1318-25). This Court dismissed Count 32 as to
all Defendants except Duke and DUHS. McFadyen, 786 F. Supp. 2d at 1003.
Because Nurse Levicy is entitled to judgment as a matter of law on each Count
remaining against her (Counts 1, 2, and 18), Defendants Duke and DUHS are
entitled to judgment as a matter of law on Plaintiffs’ negligence claim in Count 32.
As this Court has explained, “North Carolina recognizes the existence of a
claim against an employer for negligence in employing or retaining an employee
whose wrongful conduct injures another.” Id. at 1001 (quoting Hogan v. Forsyth
Country Club Co., 79 N.C. App. 483, 494, 340 S.E.2d 116, 123 (1986)).
“However, before the employer can be held liable, plaintiff must prove that the
incompetent employee committed a tortious act resulting in injury to plaintiff and
that prior to the act, the employer knew or had reason to know of the employee’s
incompetency.” Id. (quoting Hogan, 79 N.C. App. at 495, 340 S.E.2d at 124). The
employee’s “underlying tortious conduct is ‘an essential element of this claim.’”
18

Id. at 1002 (quoting Kimes v. Lab Corp. of Am., Inc., 313 F. Supp. 2d 555, 569
(M.D.N.C. 2004)).
In this case, Plaintiffs’ negligent supervision claim may proceed against
Duke and DUHS only to the extent that an underlying tort claim remains against
Nurse Levicy. See id. This Court allowed Plaintiffs’ claim to go forward against
Duke and DUHS at the motion to dismiss stage only because Plaintiffs were
proceeding on at least one underlying tort claim against Nurse Levicy, the
obstruction of justice claim in Count 18. See id. n.84.3 Because Nurse Levicy is
entitled to judgment on the pleadings as to Count 18, see supra section III, there is
no underlying tort by Nurse Levicy to form the basis of Plaintiffs’ negligent
supervision claim. Therefore, Duke and DUHS are entitled to judgment as a
matter of law on Count 32. See Hogan, 79 N.C. App. at 496-97, 340 S.E.2d at
3

While this Court also recognized that Plaintiffs were proceeding on their
§ 1983 claims against Nurse Levicy in Counts 1 and 2, it questioned the viability
of a state law negligent supervision claim based on underlying conduct that
violates § 1983. See McFadyen, 786 F. Supp. 2d at 1002 n.84. In similar contexts,
courts have held that a common law negligent supervision claim may not be
predicated on a federal statutory claim. See Bond v. Rexel, Inc., No. 5:09-CV-122,
2011 WL 1578502, at *8 (W.D.N.C. Apr. 26, 2011) (unpublished) (Title VII
claims could not support negligent supervision claim because they were not
common law torts); Greenan v. Bd. of Educ. of Worcester Cnty., 783 F. Supp. 2d
782, 791 (D. Md. 2011) (“[N]egligent supervision . . . may only be predicated on
common law causes of action.”). Even if a negligent supervision claim may arise
from a § 1983 claim, Plaintiffs’ negligent supervision claim fails. For the reasons
stated above, Nurse Levicy is entitled to judgment as a matter of law on Counts 1
and 2. See supra sections I, II.B.2. Thus, there is no underlying claim against
Nurse Levicy on which Plaintiffs may base a negligent supervision claim.
19

124-25 (holding that defendants were entitled to summary judgment against
negligent supervision claim where plaintiffs failed to establish underlying tort);
Kimes, 313 F. Supp. 2d at 568-69 (same).
CONCLUSION
For the reasons stated above, Tara Levicy respectfully requests that the
Court enter judgment on the pleadings as to Counts 1, 2, and 18; Gary Smith
respectfully requests that the Court enter judgment on the pleadings as to Count 2;
and Duke University and Duke University Health System, Inc., respectfully request
that the Court enter judgment on the pleadings as to Count 32.

20

This the 27th day of February, 2013.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke and Gary Smith

21

/s/ Dan J. McLamb
Dan J. McLamb
N.C. State Bar No. 6272
Yates, McLamb & Weyher, LLP
421 Fayetteville Street, Suite 1200
Raleigh, North Carolina 27601
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for DUHS and Tara Levicy

CERTIFICATE OF SERVICE
I hereby certify that on 27 February 2013, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send notification
of such filing to all counsel of record and to Mr. Linwood Wilson, who is also
registered to use the CM/ECF system.
This the 27th day of February, 2013.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke and Gary Smith