MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 343

REPLY, filed by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH, to Response to #335 MOTION for Judgment on the Pleadings filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. (SUN, PAUL)

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 REPLY 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 reply brief in support of their motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ARGUMENT
While Defendants do not agree with Plaintiffs’ statement of facts, for the
limited purposes of this motion, those facts must be taken as true. See Mendenhall
v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 723 (M.D.N.C. 2012). Even when
construed in the light most favorable to Plaintiffs, the allegations of the Second
Amended Complaint are insufficient to state claims against Nurse Levicy on
Counts 1, 2, and 18; Officer Smith on Count 2; and Duke and DUHS on Count 32.

I.

THE FOURTH CIRCUIT’S DECISION IN EVANS FORECLOSES
PLAINTIFFS’ § 1983 CLAIMS.
As Plaintiffs acknowledge, the Fourth Circuit’s ruling in Evans v. Chalmers,

703 F.3d 636 (4th Cir. 2012), bars their remaining constitutional claims. (Pls.’ Br.
at 2; see also Defs.’ Br. at 5-15). Plaintiffs thus concede that Defendants are
entitled to judgment as a matter of law on Counts 1 and 2 “if Plaintiffs’ petition
[for certiorari] is not granted or the Fourth Circuit’s decision remains otherwise
unmodified.” (Pls.’ Br. at 2).1
II.

UNDER EVANS, NURSE LEVICY IS ENTITLED TO JUDGMENT AS A
MATTER OF LAW ON COUNT 18.
In response to Defendants’ argument that Nurse Levicy is entitled to

judgment as a matter of law on Plaintiffs’ obstruction of justice claim, Plaintiffs
unjustifiably attempt to limit the import of the Fourth Circuit’s decision and divert
the Court’s attention to arguments Defendants have not advanced here.
A.

Evans Bars Plaintiffs’ Obstruction of Justice Claim Against Nurse
Levicy for Her Actions in Connection with a Police Investigation.

Plaintiffs assert that the Fourth Circuit’s reasoning rejecting Plaintiffs’
obstruction of justice claims applies strictly and solely to police officers. (See id.
at 9-11). Nurse Levicy, of course, is not a police officer. While they imply that
1

It is not clear what Plaintiffs mean by “otherwise unmodified,” given that
Plaintiffs’ petition for rehearing en banc in the Fourth Circuit has already been
denied. See McFadyen v. Baker, No. 11-1458 (4th Cir. Jan. 15, 2013).
2

the Fourth Circuit’s reasoning is limited by its use of the words “police officer,”
Plaintiffs cite no authority demonstrating that the court’s analysis cannot apply to
other professionals participating in a police investigation. Because the defendants
before the Fourth Circuit were police officers, it is unsurprising that the court
stated its holding in terms of police officers. The Fourth Circuit’s analysis need
not be so literally confined. See, e.g., Conner v. Donnelly, 42 F.3d 220, 227-28
(4th Cir. 1994) (analysis applied to physicians under contract to treat inmates
extended to physicians not under contract but treating inmates by referral); United
States v. Melvin, 419 F.2d 136, 141 (4th Cir. 1969) (“The Court’s reasoning is not
limited to those precise circumstances.”).
Plaintiffs cannot avoid the Fourth Circuit’s decision by now recharacterizing
Nurse Levicy’s alleged actions. (See Pls.’ Br. at 11). Plaintiffs allege that Nurse
Levicy “was retained by the City of Durham, to provide forensic medical evidence
collection and analysis services in the investigation” of Crystal Mangum’s claims.
(Second Am. Compl. ¶ 38). Further, Plaintiffs distinguish their claims against
Nurse Levicy from claims of medical negligence against a nurse:
Levicy conducted the examination of Mangum . . . , having been
retained to provide forensic medical evidence collection and analysis
services in conjunction with and for purposes of the police
investigation of Mangum’s false allegations.
(Pls.’ Opp’n to SANE 12(b)(6) at 45 [DE 76] (emphasis added)). Thus, Plaintiffs’
3

own descriptions of their claims reveal that their obstruction of justice claim is
based on how Nurse Levicy “conducted a criminal investigation,” conduct that fits
squarely within the Fourth Circuit’s reasoning. See Evans, 703 F.3d at 658.
Plaintiffs argue that no case has rejected an obstruction of justice claim
“against a SANE . . . or any other . . . private actor who manufactures medical
evidence . . . [,] bolstering a false claim of rape, causing criminal process to issue
based on that false claim.” (Pls.’ Br. at 11).2 While Plaintiffs maintain that
obstruction of justice covers a wide range of conduct, they have identified no case
where a plaintiff has ever actually secured a judgment on that claim. Allegations
of Nurse Levicy’s misconduct do not defeat the Fourth Circuit’s legal reasoning,
especially given that Plaintiffs lodged similar accusations against Officers Gottlieb
and Himan, and the Fourth Circuit rejected Plaintiffs’ obstruction of justice claim
against the officers. Plaintiffs allege that “Gottlieb, Himan, . . . [and] Levicy . . .
obstructed 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.” (Second Am.
Compl. ¶ 1193). The Fourth Circuit did not reject Plaintiffs’ claims because
2

Plaintiffs cannot shore up their obstruction of justice claim by alluding to
abuse of process given that this Court has already rejected Plaintiffs’ abuse of
process claims. See McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 977-78
(M.D.N.C. 2011).
4

Plaintiffs did not plead enough misconduct—the court held, as a matter of law, that
obstruction of justice did not reach a criminal suspect’s complaints as to how
officers conducted a police investigation. See Evans, 703 F.3d at 658. Plaintiffs
cannot salvage their obstruction of justice claim by repeating these allegations,
which apply equally to Officers Gottlieb and Himan and Nurse Levicy.
Public policy dictates that the Fourth Circuit’s rationale extend to personnel
retained to assist in a police investigation. Plaintiffs acknowledge the “law
enforcement purpose” of a sexual assault examination. (Pls.’ Opp’n to SANE
12(b)(6) at 46 (quotation omitted)). SANE nurses are specifically trained to collect
evidence of sex crimes. See N.C. Gen. Stat. §§ 90-171.38(b), 143B-1200(i)(2). In
the qualified immunity context, the Supreme Court has acknowledged that, when
private individuals work closely with public employees, they will “face threatened
legal action for the same conduct.” Filarsky v. Delia, 132 S. Ct. 1657, 1666
(2012). If private individuals are held liable where public employees are not,
private individuals “might think twice before accepting a government assignment.”
Id. Such inconsistent liability hinders the government’s ability to engage private
individuals with specialized knowledge—such as SANE nurses—to support
government operations. See id. at 1665-66. If obstruction of justice does not apply
to the conduct of Officers Himan and Gottlieb in their investigation, it should not
apply to Nurse Levicy’s conduct in connection with the same investigation.
5

Finally, Plaintiffs point out that Defendants denied that Nurse Levicy acted
under color of law. (Pls.’ Br. at 11; see Answer ¶ 38). Plaintiffs alleged that Nurse
Levicy acted under color of law as a predicate for their now-rejected § 1983
claims. (See Second Am. Compl. ¶¶ 905, 919). The Fourth Circuit reasoned that
Plaintiffs’ common law obstruction of justice claims against Officers Gottlieb and
Himan fell beyond the contours of that cause of action. See Evans, 703 F.3d at
658. Whether the officers acted under color of law did not factor into the analysis.
See id. Because the issue of whether a person is acting under color of law calls for
a legal conclusion, Defendants properly denied Plaintiffs’ allegation that Nurse
Levicy acted under color of law. See Rodriguez v. Smithfield Packing Co., 338
F.3d 348, 354 (4th Cir. 2003) (action under color of law is an issue of law); Farrell
v. Pike, 342 F. Supp. 2d 433, 440-41 (M.D.N.C. 2004) (defendant required to
respond to legal conclusion).
B.

Plaintiffs’ Remaining Arguments Are Unresponsive to This Motion.

Plaintiffs protest that Defendants “do not point to any case in any
jurisdiction that recognizes a common law obstruction of justice claim but bars
such an action against a SANE.” (Pls.’ Br. at 11 (emphasis added)). In fact,
Defendants have been unable to identify any other jurisdiction that recognizes a
common law tort claim for obstruction of justice. See, e.g., Horn v. California,
No. CIVS050814MCEKJM, 2005 WL 1925917, at *5-6 (E.D. Cal. Aug. 10, 2005)
6

(unpublished) (rejecting civil action for obstruction of justice); Culberson v. Doan,
125 F. Supp. 2d 252, 279-80 (S.D. Ohio 2000) (same); Amariglio v. Nat’l R.R.
Passenger Corp., 941 F. Supp. 173, 180 (D.D.C. 1996) (same); Hawk v. Perillo,
642 F. Supp. 380, 385-86 (N.D. Ill. 1985) (same). Further, Plaintiffs have not
pointed to any case that allows an obstruction of justice claim against a SANE
nurse acting in aid of a criminal investigation.
Next, Plaintiffs copy and paste, with minor alterations, a portion of this
Court’s opinion on Defendants’ motions to dismiss. (Compare Pls.’ Br. at 11-13
with McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 974-75 (M.D.N.C. 2011)).
Plaintiffs apparently attempt to refute an argument Defendants have not advanced
in support of this motion—Defendants’ argument at the motion to dismiss stage
that obstruction of justice is limited to interference with a civil remedy. (See
SANE Defs.’ 12(b)(6) Br. at 41-45 [DE 48]). Defendants have not reargued that
defense in connection with this motion. (See also Pls.’ Br. at 13-14 (arguing that
Plaintiffs adequately alleged interference with a civil remedy although Defendants
have not reargued that issue)).
Plaintiffs also point to State v. Taylor, 713 S.E.2d 82 (N.C. Ct. App. 2011),
asserting that Taylor “held that common law obstruction of justice applies to acts
in connection with a criminal investigation.” (Pls.’ Br. at 13). Taylor, however,
concerns the common law criminal offense of obstruction of justice. See 713
7

S.E.2d at 87-88 (discussing felonious common law obstruction of justice).
Because all of Plaintiffs’ allegations concern Nurse Levicy’s actions in
connection with a police investigation, Nurse Levicy is entitled to judgment as a
matter of law under the Fourth Circuit’s ruling in Evans.
III.

PLAINTIFFS’ NEGLIGENT HIRING, SUPERVISION, AND
RETENTION CLAIM CANNOT SURVIVE THE DISMISSAL OF THE
OBSTRUCTION OF JUSTICE CLAIM AGAINST NURSE LEVICY.
In response to Defendants’ motion for judgment on Count 32, Plaintiffs

(1) attempt to broaden the basis of their claim; and (2) misdirect the Court’s
attention to a discussion of the distinctions between the tort of negligent
supervision and the theory of respondeat superior liability. (See Pls.’ Br. at 14-18).
A.

Count 32 Is Based Solely on Plaintiffs’ Obstruction of Justice Claim
Against Nurse Levicy.

Contrary to what Plaintiffs now represent, Count 32 is not based on “the
[t]ortious [c]onduct of Tara Levicy, [a]mong [o]thers.” (See id. at 15 (subheading)
(emphasis added)). Instead, Count 32 rests on the allegedly tortious conduct of
Nurse Levicy alone. See McFadyen, 786 F. Supp. 2d at 1002 (“claim asserted in
Count 32 . . . for negligent supervision of Levicy”); Pls.’ Br. at 15 (“DUHS or
Duke negligently supervised Levicy”).
Ignoring the purpose of this dispositive motion, Plaintiffs argue that this
Court should not dismiss Count 32 because “active claims against Levicy remain,
8

including Plaintiffs’ claim for obstruction of justice.” (Pls.’ Br. at 14). Defendants
have not argued that the Court should dismiss Count 32 in spite of the remaining
obstruction of justice claim against Nurse Levicy. Instead, Defendants contend
that because Nurse Levicy is entitled to judgment on Count 18, Duke and DUHS
are entitled to judgment as a matter of law on Count 32. (See Defs.’ Br. at 18).
Plaintiffs’ statement that “active claims . . . including” obstruction of justice
remain wrongly implies that claims other than obstruction of justice may support
Count 32. (See Pls.’ Br. at 14). Nurse Levicy moved for judgment on all three
remaining claims against her. (Defs.’ Br. at 1). Plaintiffs concede that two of
those claims fail. See supra section I. In any event, Plaintiffs’ § 1983 claims could
not support Count 32, because “North Carolina law requires a common-law tort to
underl[ie] a negligent retention and supervision claim.” Jackson v. FKI Logistex,
608 F. Supp. 2d 705, 708 (E.D.N.C. 2009); see Defs.’ Br. at 19 n.3.
As this Court has explained, Plaintiffs’ negligent supervision claim survives
only “to the extent that other underlying claims are proceeding in this case as to
Levicy.” McFadyen, 786 F. Supp. 2d at 1002. Count 18 against Nurse Levicy is
the sole remaining claim that can support Count 32. Count 32, therefore, cannot
survive if this Court grants judgment for Nurse Levicy on Count 18.
B.

Respondeat Superior Liability Is Irrelevant to This Motion.

Plaintiffs correctly note that Duke and DUHS did not move for judgment on
9

the pleadings as to all of Count 18. (Pls.’ Br. at 14). Apart from Nurse Levicy,
there are four remaining Defendants, Robert Steel, Richard Brodhead, Victor
Dzau, and John Burness, whom Plaintiffs have alleged obstructed justice in the
course and scope of their employment for either Duke or DUHS. (See Second Am.
Compl. ¶¶ 22, 23, 26, 28). Taking Plaintiffs’ allegations as true for the purposes of
this motion, Duke and DUHS remain defendants under Count 18 because of
Plaintiffs’ respondeat superior allegations as to those remaining Defendants.
In contrast, Count 32 rests entirely on Nurse Levicy’s actions. If this Court
grants Nurse Levicy’s motion as to Count 18, the Court will have rejected an
essential element of Plaintiffs’ claim—underlying claims “going forward as to
Defendant Levicy.” See McFadyen, 786 F. Supp. 2d at 1002. Neither Duke nor
DUHS may be held liable for Nurse Levicy’s non-actionable conduct, regardless of
whether she acted in the course and scope of her employment.
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.

10

This the 17th day of June, 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

/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 17 June 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 17th day of June, 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