MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
344
NOTICE OF FILING A PETITION FOR WRIT OF CERTIORARI by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON re #331 USCA Mandate, #336 Brief, #34 Amended Complaint, #343 Reply to Response to Motion, #341 Response to Motion, #335 MOTION for Judgment on the Pleadings , Motions Submitted (Attachments: #1 Exhibit Petition for Writ of Certiorari)(EKSTRAND, ROBERT)
EXHIBIT
A
Petition
for
Writ
of
Certiorari
No. _______
In The
Supreme Court of the United States
-------------------------- ♦ ---------------------------
RYAN MCFADYEN; MATTHEW WILSON;
BRECK ARCHER,
Petitioners,
v.
CITY OF DURHAM,
NORTH CAROLINA, ET AL.,
Respondents.
-------------------------- ♦ --------------------------
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
-------------------------- ♦ --------------------------
PETITION FOR WRIT OF CERTIORARI
-------------------------- ♦ --------------------------
Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
(919) 416-4590
SJE@ninthstreetlaw.com
THE LEX GROUPDC 1825 K Street, N.W. Suite 103 Washington, D.C. 20006
(202) 955-0001 (800) 856-4419 Fax: (202) 955-0022 www.thelexgroup.com
i
QUESTION PRESENTED
I.
Is “a significantly lower standard than probable
cause” sufficient under the Fourth Amendment to
justify a court order authorizing police to detain 46
young men at a police station to collect their DNA,
compel them to disrobe, and submit to close
examination and photographing of their bodies for
evidence in a criminal investigation?
ii
PARTIES TO THE PROCEEDINGS
Petitioners are Ryan McFadyen; Matthew
Wilson; and Breck Archer. Respondents are the City
of Durham, North Carolina; David Addison; Patrick
Baker; Steven Chalmers; Beverly Council; Mark
Gottlieb; Benjamin Himan; Ronald Hodge; Jeff
Lamb; Michael Ripberger; and Lee Russ.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDINGS ......................... ii
TABLE OF CONTENTS............................................ iii
TABLE OF AUTHORITIES ........................................v
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATEMENT.............................................................. 2
A. Background ...................................................... 5
B. Procedural History ..........................................18
REASONS FOR GRANTING THE PETITION ........24
A. The Fourth Circuit’s replacement of
the Fourth Amendment’s probable
cause requirement with a “significantly
lower standard” for station-house DNA
searches conflicts with this Court’s
decisions and creates a new conflict
among the circuits where none existed
previously ........................................................24
B. Allowing the Fourth Circuit’s decision
to stand would suggest that Maryland
v. King is not limited to DNA searches
for noninvestigative purposes, thereby leaving unsettled the important
question of what the limits of King
really are .........................................................30
CONCLUSION ..........................................................33
iv
APPENDIX
Published Opinion and Judgment of
The United States Court of Appeals for
The Fourth Circuit
entered December 17, 2012..................1a
Memorandum Opinion and Order of
The United States District Court for
The Middle District of North Carolina
entered March 31, 2011 .....................83a
Order of
The United States Court of Appeals for
The Fourth Circuit Denying
Petition for Rehearing En Banc
entered January 15, 2013 ................352a
N.C. Gen. Stat. § 15A-271...........................356a
N.C. Gen. Stat. § 15A-273...........................357a
N.C. Gen. Stat. § 5A-12...............................358a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Brown v. Illinios,
422 U.S. 590 (1975) .........................................27
Cupp v. Murphy,
412 U.S. 291 (1973) ...................................28, 29
Davis v. Mississippi,
394 U.S. 721 (1969) ................................. passim
Dunaway v. New York,
442 U.S. 200 (1979) ................................. passim
Franks v. Delaware,
438 U.S. 154 (1978) ...................................20, 22
Hayes v. Florida,
470 U.S. 811 (1985) ................................. passim
Maryland v. King,
569 U.S. ___, No. 12-207,
slip op. at 25 (June 3, 2013) .................... passim
Miranda v. Arizona,
384 U.S. 436 (1966) .........................................14
Missouri v. McNeely,
133 S. Ct. 1552 (Apr. 17, 2013) ............... passim
vi
Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978) .........................................23
Schmerber v. California,
384 U.S. 757 (1966) .........................................28
State v. Grooms,
540 S.E.2d 713 (N.C. 2000) .............................. 7
State v. Peterson,
566 S.E.2d 50 (N.C. 2002) ................................ 7
State v. Welch,
342 S.E.2d 789 (N.C. 1986) .............................. 7
Terry v. Ohio,
392 U.S. 1 (1968) .........................................7, 26
Winston v. Lee,
470 U.S. 753 (1985) .........................................29
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. IV ...................................... passim
U.S. CONST. amend. V................................................26
U.S. CONST. amend. VI ..............................................26
STATUTES
28 U.S.C. § 1254(1) ..................................................... 2
28 U.S.C. § 1331.........................................................19
vii
28 U.S.C. § 1343(a) ....................................................19
28 U.S.C. § 1367(a) ....................................................19
42 U.S.C. § 1983.........................................................18
N.C. GEN. STAT. § 5A-12 ............................................. 7
N.C. GEN. STAT. § 15A-271 ......................................... 7
N.C. GEN. STAT. § 15A-273(1) ..................................... 7
N.C. GEN. STAT. § 15A-273(2) ..................................... 7
N.C. GEN. STAT. § 15A-273(3) ..................................... 7
MISCELLANEOUS
Defs.’ Mot. J. Pleadings,
McFadyen v. Duke Univ.,
No. 1:07CV953 (M.D.N.C. Feb. 27, 2013)
(ECF 35) ..........................................................19
Appellees’ Brief, McFadyen v. Baker,
No. 11-1458 (4th Cir. Sept. 21, 2011)
(ECF 69) ..........................................................22
1
IN THE SUPREME COURT OF THE
UNITED STATES
____________
NO.
RYAN MCFADYEN, ET AL., PETITIONERS,
V.
CITY OF DURHAM, N.C., ET AL.
____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
____________
PETITION FOR A WRIT OF CERTIORARI
____________
Ryan McFadyen, Matthew Wilson, and Breck
Archer respectfully petition for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Fourth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
1a-82a) is reported at 703 F.3d 636 (4th Cir. 2012).
The order of the court of appeals denying rehearing
en banc (App., infra, 352a-355a) is unreported. The
opinion of the district court (App., infra, 83a-348a) is
reported at 786 F. Supp. 2d 887 (M.D.N.C. 2011).
JURISDICTION
The judgment of the court of appeals was entered
on December 17, 2012. A petition for rehearing was
2
denied on January 15, 2013. On April 8, 2013, the
Chief Justice extended the time within which to file
a petition for a writ of certiorari to and including
May 30, 2013, and on May 22, 2013, he further
extended the time to and including June 13, 2013.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
STATEMENT
In Maryland v. King, this Court decided that the
Fourth Amendment permits a State to collect and
analyze DNA from individuals arrested and charged
with serious crimes, where the justifying purpose of
the DNA collection is not investigative. 569 U.S. ___,
No. 12-207, slip op. at 25, 28 (June 3, 2013). Both the
majority and dissenting opinions proceed from the
same premise; that is, the Fourth Amendment would
not tolerate a search to collect DNA if the justifying
motive was the investigation of crime. Id. slip op. at
25, 28 (majority opinion); id. slip op. at 1, 3-4 (Scalia,
J., dissenting). The majority believed that the
purposes of Maryland’s DNA collection program
were noninvestigative (i.e., that it was a part of “a
legitimate booking procedure” the State used to
identify those in its custody and place them in
appropriate populations within its prison system),
and therefore did not violate the Fourth
Amendment. Id. slip op. at 11-15, 23, 28 (majority
opinion). The four dissenting justices disagreed,
finding that, as a factual matter, “no such
noninvestigative motive exists in this case.” Id. slip
op. at 1 (Scalia, J., dissenting). The Court has never
permitted an intrusive bodily search of a person for
evidence of a crime absent probable cause to believe
3
the person committed the crime and is in possession
of incriminating evidence. The dissent in King
stressed that in the well-guarded category of cases
that the Court relaxed the probable cause
requirement, “it has insisted on a justifying motive
apart from the investigation of crime.” Id. slip op. at
1 (Scalia, J., dissenting).
This case presents the mirror image of the
question presented in King; namely, whether the
station-house detention and search of a person to
collect DNA and other evidence from his body can be
justified under the Fourth Amendment on “a
significantly lower standard than probable cause”
where there is no dispute that the justifying motive
for the search and seizure is to investigate crime.
App., infra, 36a.1 This Court has repeatedly held that
it cannot. See, e.g., Missouri v. McNeely, 133 S. Ct.
1552 (Apr. 17, 2013); Hayes v. Florida, 470 U.S. 811
(1985); Dunaway v. New York, 442 U.S. 200 (1979);
Davis v. Mississippi, 394 U.S. 721 (1969). Indeed, in
King, not one justice suggested that Maryland’s DNA
collection program could be authorized under the
Fourth Amendment if its justifying purpose was to
investigate crime, even though there was probable
cause to believe the suspects subjected to DNA
collection had committed serious crimes. 569 U.S. ___,
slip op. at 25, 28 (majority opinion); id. slip op. at 3-4
(Scalia, J., dissenting).
Nevertheless, in this case, the Fourth Circuit
held that the seizure, detention, and search of
Petitioners solely for the purpose of collecting DNA
and other evidence from their body could be justified
Hereinafter, “App.” refers to the Appendix attached to this
Petition. “C.A. App.” refers to the Joint Appendix (ECF 43) in
the record of this case in the Fourth Circuit.
1
4
under “a significantly lower standard than probable
cause.” App., infra, 36a. The Fourth Circuit
expressly rejected Petitioners’ contention that “a full
showing of probable cause” was required to justify
Petitioners’ seizure, station-house detention, and
invasive bodily searches of Petitioners’ persons to
collect their DNA and examine and photograph their
bodies for other evidence of crimes. App., infra, 30a
n.6. The Fourth Circuit conceded that the searches
and seizures Petitioners alleged were “subject to the
constraints of the Fourth Amendment,” id., but went
on to hold that the Constitution does not require
“probable cause in the traditional sense for the
collection of DNA evidence,” id., but rather, requires
“only a minimal amount of objective justification,”
App., infra, 36a, and that “a significantly lower
standard than probable cause” is sufficient to justify
the seizure, station-house detention, and invasive
bodily searches of Petitioners’ persons to collect their
DNA and examine and photograph their bodies for
other evidence of crimes. Id. This Court has rejected
exactly the same proposition time and again and it
has done so most emphatically and most recently in
King. 569 U.S. ___, slip op. at 25, 28 (majority
opinion); id. slip op. at 3-4 (Scalia, J., dissenting).
Thus, the Fourth Circuit’s ruling conflicts with
this Court’s decisions not only in this term, in King,
569 U.S. ___, slip op. at 25, 28 (majority opinion); id.
slip op. at 3-4 (Scalia, J., dissenting), and McNeely,
133 S. Ct. at 1558, 1568, but also in Hayes, 470 U.S.
at 814-19, Dunaway, 442 U.S. at 216-19, Davis, 394
U.S. at 722-28, and other decisions of this Court
prohibiting the State from compelling a suspect to
submit to station-house detentions, even for
fingerprinting, or intrusive bodily searches without
5
probable cause and a warrant. To the extent that
these decisions do not fully resolve the issues raised
in this petition, these unsettled issues are important
federal questions that should be resolved by this
Court, and this case provides an excellent vehicle for
the Court to squarely resolve them. For all these
reasons, this case warrants the Court’s review and
the petition should be granted.
A.
Background
1. Petitioners are among “the sole group for
whom the Fourth Amendment’s protections ought to
be most jealously guarded: people who are innocent
of
the
State’s
accusations.”
King,
569
U.S. ___, slip op. at 18 (Scalia, J., dissenting). The
State’s accusation in this case was that Petitioners
were principals or accomplices to a violent, racially
motivated gang rape in the now infamous “Duke
Lacrosse Case.” It is undisputed that Petitioners
were innocent of the State’s accusations. The horrific
rape and sexual offense allegations that transfixed
the nation never happened. And because there was
never probable cause to believe otherwise, the State
could not and did not charge Petitioners with a
single criminal offense. Yet, Respondents subjected
Petitioners to a court order that authorized
Respondents to seize and detain all 46 white
members of the Duke Men’s Lacrosse Team at the
Durham Police Department Forensics Unit and,
while there, to compel Petitioners to disrobe and
submit to intrusive bodily searches, including close
physical inspection and photographing of their
bodies and collection of their DNA for evidence in a
criminal investigation. App., infra, 16a, 135a; C.A.
6
App. 851. Because they had no probable cause,
Respondents Himan and Gottlieb fabricated it; they
intentionally made false statements and omitted
material facts in affidavits they presented to a
judicial official in order to mislead him into believing
probable cause existed to support the court order,
knowing there was none. App., infra, 135a, 339a340a, 347a; C.A. App. 695-704, 808-16, 851-53.2
2. The court order was a “non-testimonial order”
(“NTO”) authorized under a North Carolina statute
that permits “any judge” to issue an order
authorizing the State to seize, detain, and compel a
“suspect” to submit to “physical examination” and
“identification procedures requiring the presence of a
suspect” to collect “nontestimonial identification”
evidence for use in the prosecution of criminal
offenses. N.C. GEN. STAT. § 15A-271 (2013) (App.,
infra, 356a). An NTO and a warrant are distinct only
in one respect: the NTO requires only “reasonable
grounds” to believe the person named in the order
committed the crime under investigation. N.C. GEN.
2 Many of Petitioners’ citations to factual allegations
established in the record of this case point to the district court’s
opinion and Petitioners’ operative complaint. As an initial
matter, it is worth noting, that this case involves extraordinary
detailed and well-supported allegations. When the Fourth
Circuit consolidated the cases below, their opinion not only
omitted important allegations from Petitioners’ complaint, but
also confused Petitioners’ allegations with allegations from the
other cases. Thus, Petitioners have cited to the district court
opinion and their complaint for accurate references to the
factual allegations in this case. Note that when Petitioners do
cite to the factual allegations in the Fourth Circuit opinion, it is
only to very specific allegations and not to all of the allegations
contained on that page.
7
STAT. § 15A-273(2) (2013) (App., infra, 357a).3
Otherwise, an NTO, like a warrant, requires
probable cause to believe that the crime actually
occurred and that the evidence to be collected under
the NTO “will be of material aid in determining
whether the person named in the affidavit
committed the offense.” Id. 15A-273(1), (3) (App.,
infra, 357a).4 The failure or refusal to comply with
an NTO is punishable by up to 90 days
imprisonment, a fine, censure, or any combination of
the three. N.C. GEN. STAT. § 5A-12 (2013) (App.,
infra, 358a).
3. On March 23, 2006, at 4:00 p.m., Petitioners
were compelled by an NTO to appear at Durham
Police Department Forensics Unit, be seized, and
submit to collection of their DNA and examination of
3 The North Carolina Supreme Court has concluded that
the “reasonable grounds” standard is “similar to the reasonable
suspicion standard applied to brief detentions” under Terry v.
Ohio, 392 U.S. 1 (1968). State v. Peterson, 566 S.E.2d 50, 54
(N.C. 2002).
4 On at least one occasion, the North Carolina Supreme
Court ruled that a nontestimonial order that met the
requirements of the statute authorized an unconstitutional
search. See, e.g., State v. Welch, 342 S.E.2d 789, 793 (N.C.
1986) (holding that [s]ince the withdrawal of a blood sample is
subject to fourth amendment requirements, a search warrant
must be procured before a suspect may be required to submit to
such a procedure unless probable cause and exigent
circumstances exist that would justify a warrantless search”).
See also State v. Grooms, 540 S.E.2d 713, 728 (N.C. 2000)
(recognizing that “[t]he invasion of a person’s body to seize
blood, saliva, and hair samples is the most intrusive type of
search; and a warrant authorizing the seizure of such evidence
must be based upon probable cause to believe that blood, hair,
and saliva samples constitute evidence of an offense or the
identity of a person who participated in the crime”).
8
their bodies for other evidence of crimes. App., infra,
16a, 135a; C.A. App. 49, 851. When Respondents
drafted the application for the NTO, swore to its
content, and submitted it to the judicial official,
Respondents were aware of all of the following facts,
as set forth herein and alleged in Petitioners’
complaint--including the fact that no medical
evidence corroborated the violent gang rape alleged
and the accuser’s inability to recognize any of the
Petitioners in a photo identification procedure. App.,
infra, 99a-100a, 120a-123a; C.A. App. 659-71, 682,
685-86, 695-96, 703-04, 807-16, 851-53. Yet,
Respondents deliberately omitted the following
material facts from their NTO affidavits in order to
mislead the judicial official into finding probable
cause to believe that a violent gang rape occurred
and reasonable grounds to believe Petitioners
committed it. App., infra, 135a, 339a-340a, 347a;
C.A. App. 684-86, 695-704, 808-16, 851-53.
The facts known to Respondents when they
applied for the NTO at issue in this case are set out
below.
4. During the early morning hours of March 14,
2006, a Kroger security guard called 911 requesting
police assistance with an intoxicated female who
would not get out of a car. The intoxicated female
was Crystal Mangum. Mangum and the driver of the
car, Kim Pittman, had come from a party at 610 N.
Buchanan Blvd. attended by members of the Duke
men’s lacrosse team. During the car ride, the
atmosphere, as later described by Pittman, went
from happy to one where the intoxicated Mangum
was acting and talking crazy. As a result of
Mangum’s bizarre behavior, Pittman tried multiple
times to get Mangum out of her car. When Pittman
9
was unsuccessful, she drove straight to the 24-hour
Kroger, to find help in getting Mangum out of her
car. Upon arrival, Pittman met and sought help from
the grocery store’s security guard. App., infra, 12a13a, 89a; C.A. App. 643.
5. City of Durham police officers W. K. Barfield
and John C. Shelton responded to the dispatch of an
intoxicated female refusing to get out of a car in the
Kroger parking lot. Upon arriving at Kroger, the
police officers observed Mangum still in the car
feigning unconsciousness. Suspecting a ruse, Sgt.
Shelton opened an ammonia capsule under
Mangum’s nose, and Mangum began mouthbreathing, confirming his suspicions. After Sgt.
Shelton was finally able to remove Mangum from the
car, Mangum continued to feign unconsciousness.
The officers interpreted Mangum’s behavior as a
product of alcohol or drug impairment. With a plan
of bringing Mangum to the County Jail for a
“twenty-four hour lock up status,” until she sobered
up, the officers reported back to the 911 center that
Mangum was “breathing, appears to be fine. She’s
not in distress. She’s just passed out drunk.” The
entire time Mangum was in the Kroger parking lot,
she did not say or suggest that she had been
assaulted. In fact, when the Kroger security guard,
Angel Altmon, was asked if there was anything
about Mangum’s appearance or behavior that even
suggested Mangum had been sexually assaulted, she
replied, “Ain’t no way!” App., infra, 90a; C.A. App.
644-45.
6. Not
long
thereafter,
Durham
police
determined that Mangum’s behavior met the criteria
for involuntary commitment, and Mangum was
taken to the Durham Access Center for that purpose.
10
In the process, Mangum overheard a radio exchange
in which an officer reported that Mangum had two
children at home who were possibly alone, and
another officer directed a police unit to Mangum’s
house to check on the children, and if there was no
adult supervision, to call the Department of Social
Service (“DSS”) for intervention. App., infra, 91a;
C.A. App. 645-47.
7. Mariecia Smith was the supervisor on duty at
the Durham Access Center when Officer Barfield
presented Mangum for involuntary commitment.
Mangum told Smith that her name was “Honey” and
she did not want to go to jail. Mangum did not tell
Smith that she had been raped or assaulted in any
way. Later, a Durham Center Access nurse, Alycia
Wright, conducted the commitment evaluation.
Mangum refused to respond to Wright’s questions.
Instead, Mangum wrote the names of her children on
a piece of paper. Wright saw Mangum writing her
children’s names, and asked if they were her
children’s names. Mangum nodded, yes. Wright then
asked, “Did something happen to your children?”
Mangum said “no.” Wright then asked Mangum,
“Did something happen to you?” Mangum nodded,
yes. Wright then asked Mangum, “Were you raped?”
Mangum nodded, yes. Nurse Wright wrote a note
expressing her belief that Mangum’s bizarre
behavior reflected a break with reality (i.e.,
psychosis). The commitment proceedings were
suspended so police could take Mangum to Duke
University Medical Center (“DUMC”) for a Sexual
Assault Examination. Up to that point, Mangum did
not provide any information about a rape or any
attacker. App., infra, 13a, 91a; C.A. App. 647-49.
11
8. Officer Barfield transported Mangum to
DUMC. On the ride over, Mangum did not provide
the number, name, aliases, or descriptions of her
“attacker(s)” nor did Mangum provide any detail of
the alleged attack. She did, however, repeatedly give
a detailed report of the property she insisted that
Pittman stole from her: her money ($2,000), ID, cell
phone, and bag. App., infra, 91a; C.A. App. 649.
9. Soon after Mangum arrived at DUMC, Sgt.
Shelton interviewed her and she recanted her rape
claim. She continued to insist, however, that her
money had been taken, and she wanted police to get
it back. Sgt. Shelton informed the officers assembled
there that Mangum had lied about the rape at the
Durham Access Center, and as he was reporting that
to his Watch Commander, Mangum renewed her
rape claim. App., infra, 13a, 92a; C.A. App. 651-52.
10. Records from eleven subsequent interviews
and interactions that police and medical providers
had with Mangum in the early morning hours of
March 14, 2006 document that Mangum never gave
the same account twice. In fact, the account from
Duke Officer Mazurek (the officer in charge at
DUMC) was that Mangum was faking. Sgt. Shelton
and Officer Sutton also believed Mangum was lying.
She never described her alleged attacker(s), she
never mentioned Duke, Duke students, a team,
athletes, lacrosse, or any sport for that matter. When
pressed for detail, Mangum’s reports of the most
basic facts varied wildly. For example, Mangum
variously reported that she was raped by 1 man, 20
men, 5 men, and that she was not raped at all.
Mangum claimed that her cohort’s name was “Nikki”
(Pittman), Angel (the Kroger Security Guard), and
Tammy (her agency contact). Likewise, she variously
12
reported that her money ($400 and $2,000) was
stolen, not stolen, stolen by her cohort (Nikki, Angel,
or Tammy), stolen by her attacker(s), deposited at an
ATM, and left in Officer Barfield’s patrol car.
Mangum reported that she had one beer that night
and that she drank so much alcohol that she “didn’t
feel pain.” She did not identify anyone by name,
except “Brett” who she reported was and was not one
of the attackers. She did not claim the men used
each other’s names, aliases, or numbers to refer to
one another or otherwise acted to “create an
atmosphere of confusion.” The only aliases Mangum
reported were the aliases that she and Pittman used,
“Precious” and “Nikki.” Indeed, when they
encountered police at the Kroger, Pittman used her
true name, but when Mangum interacted with
police, she said her name was “Precious” and
“Honey” and that she lived in Durham and Raleigh.
App., infra, 93a; C.A. App. 278, 651-53, 658-59, 66671.
11. DUMC’s
Sexual
Assault
Examination
revealed no evidence consistent with a violent gang
rape of any sort. Mangum denied receiving any
physical blows, and no cuts, abrasions, or any other
microscopic injury could be seen in or around
Mangum’s vagina or anus with a high-magnification
colposcope. The total absence of corroborating injury
was confirmed by serology tests that found not even
trace amounts of blood on the vaginal or rectal swabs
in Mangum’s Sexual Assault Kit. Likewise, several
“Systems Examinations” by DUMC doctors and
nurses revealed that Mangum’s head, back, neck,
chest, breast, nose, throat, mouth, abdomen, and
upper and lower extremities were all “normal,” and
that Mangum was in “no obvious discomfort.” Those
13
examinations and Mangum’s documented history
revealed that Mangum had a propensity to make
false reports of pain to obtain prescription narcotics
that she did not need. As a result, she was not given
narcotic pain medication at DUMC. App., infra, 94a95a; C.A. App. 659-64, 670.
12. The next day, Mangum presented to the
University of North Carolina Hospital (UNCH)
complaining of pain and asking for prescription
narcotics. Mangum claimed that she had been
sexually assaulted the night before. Contrary to her
report to DUMC doctors and nurses that she had not
suffered any blows during the alleged assault,
Mangum told UNCH doctors and nurses that she
had been beaten, suffered multiple blows, was
knocked to the floor, and hit her head on the sink.
Mangum told UNC doctors that DUMC doctors did
not prescribe narcotic pain medication for her
because she had so much alcohol that she “did not
feel pain” while at DUMC. (In fact, at DUMC
Mangum reported false pain scores of “10/10” which
doctors there could not corroborate and therefore
deemed false.) The UNCH doctors had access to
Mangum’s medical record, which documented a
medical history rife with facts and findings that
weighed heavily against Mangum’s credibility,
including a long psychiatric history of severe
psychological disorders; treatment that included an
anti-psychotic medication that targets the symptoms
of schizophrenia (delusions, hallucinations, fractured
thinking, and breaks with reality); a long history of
Mangum’s false reports of pain to obtain prescription
narcotics; and a finding that, because Mangum was
a “very high risk” for narcotic abuse, she should “not
be prescribed any narcotics.” The doctors at UNCH,
14
like those at DUMC, found no evidence to
corroborate her reports of pain, and Mangum
changed the basic facts of the alleged assault in
several more ways in her attempt to obtain
prescription narcotics. App., infra, 96a; C.A. App.
665-67.
13. The foregoing facts were all established in the
first 48 hours after Mangum left 610 N. Buchanan
and were documented in police and medical records
that Respondents obtained before they sought the
NTO. Nothing in the medical and police records
corroborated Mangum’s rape claim; to the contrary,
they all supported her recantation. App., infra, 96a;
C.A. App. 664, 670-71.
14. The Durham Police Department investigator
assigned to the case, Investigator Jones, concluded
that Mangum had not been raped and deemed the
claim “unsubstantiated.” Respondent Sgt. Mark
Gottlieb learned that Mangum had reported that she
had been raped at a party attended by Duke
students and as Jones’ superior in rank, ordered
Jones not to close the investigation, not to make any
formal findings, and to turn the investigation over to
him. App., infra, 14a, 96a-97a; C.A. App. 672.
15. Gottlieb had a documented history of
misconduct in his dealings with Duke students. That
history included unconstitutional warrantless raids
of their homes, searches and seizures of their
persons and property without a warrant or probable
cause, interrogations of them without Miranda
warnings, fabrication of testimony in criminal
proceedings
he
initiated
against
them,
disproportionate enforcement of the criminal law
against them, and physical abuse. Only weeks before
Mangum’s
allegations,
Gottlieb’s
supervisors
15
removed him from the patrol beat in the East
Campus neighborhood where 610 N. Buchanan was
located because of his documented misconduct in his
dealings with Duke students. App., infra, 212a213a; C.A. App. 629-34.
16. Knowing that Investigator Jones and Sgt.
Shelton had both found Mangum’s claims to be
demonstrably false and that the medical and police
records all contradicted it, Gottlieb reopened the
investigation and assigned Respondent Benjamin
Himan, who had two months of investigative
experience, to assist him in the case. App., infra,
97a-98a; C.A. App. 652-53, 670, 672, 675; see also
C.A. App. 611-28.
17. Gottlieb and Himan interviewed Mangum on
March 16, 2006, and they claimed that, during the
interview, Mangum gave the first names and
descriptions of her attackers (this time Mangum
reported there were three): “Adam” was short, red
cheeks, fluffy brown hair, chubby face; “Matt” was
heavy set, short hair, 260-270 pounds; and “Brett”
was chubby. App., infra, 14a, 99a; C.A. App. 679.
18. That day, with photos of the members of the
Duke Men’s Lacrosse team, Respondents prepared
four photo arrays containing only photographs of
members of the team to use in an identification
procedure with Mangum. During the procedure,
Mangum was shown pictures of each of the
Petitioners and asked if she could identify any of
them as having been present at the party; she did
not recognize any of Petitioners at all. While she did
claim to recognize several of their teammates as
having been present at the party, she claimed that
one of them was present “with 100% certainty” but
Respondents knew that person was not at the party
16
or even in Durham the night of March 13th.
Mangum did not identify anyone in the pictures as
her attacker. App., infra, 99a; C.A. App. 679-83.
19. On March 21, 2006, Mangum was summoned
to meet with Himan and Gottlieb at the police
substation. When she arrived, Himan asked
Mangum if she could give a better description of the
suspects, but Mangum could not. Having failed to
identify any “attacker” (or even those present at the
party) from 24 pictures on March 16th. Respondents
compiled two more photo arrays using a total of 12
team members who Mangum had not been shown in
the March 16th arrays. Mangum looked at all 12
photos in the two arrays and did not recognize any of
them. Not one. Respondents showed her both arrays
again, and, again, she recognized no one. App., infra,
99a-100a; C.A. App. 683-84.
20. As of March 21, 2006, there was no probable
cause to believe that the alleged gang rape occurred
and neither probable cause nor “reasonable grounds”
to believe that Petitioners committed it. Moreover, it
was plainly obvious no later than March 21, 2006,
even if there was a basis for believing that Mangum
raped, neither probable cause nor “reasonable
grounds” existed to believe that Ryan McFadyen,
Matt Wilson, or Breck Archer committed it. C.A.
App. 685-86, 852.
21. Even Mangum’s co-dancer Pittman, who was
with Mangum at 610 N. Buchanan Blvd., said that
Mangum’s claim of rape was a “crock.” App., infra,
15a, 100a; C.A. App. 686.
22. With no probable cause or reasonable
suspicion, Gottlieb and Himan moved to schedule
the voluntary interrogation of all 47 members of the
team during which Petitioners would be asked to
17
voluntarily permit police to take their DNA via
cheek-swabs. The interrogations were scheduled by
Duke officials without Petitioners’ knowledge. They
were not notified until the night before the
interrogations were to be conducted, so they
requested that they be postponed to consult with
their parents and counsel. App., infra, 100a-101a;
C.A. App. 691-95.
23. In response to Petitioners’ postponement,
Respondents prepared an application for an NTO
compelling every white member of the Duke Men’s
Lacrosse Team to surrender to the Durham Police
Department and to submit there to cheek swabbings
to obtain their DNA and to disrobe for purposes of
close physical inspection and photographing of their
bodies. Because no probable cause or reasonable
grounds existed to believe that a crime was
committed or that Petitioners committed it,
Respondents, in concert with their co-defendants,
fabricated probable cause by making false
statements and omitting material facts from the
NTO affidavits. The result was the most incendiary
narrative that Respondents could imagine, all of
which, they knew, was either unsupported or
contradicted by foregoing facts. App., infra, 100a102a, 135a, 339a-340a, 347a; C.A. App. 684-86, 695704, 808-16, 851-53.
24. Prior to serving the NTO on Petitioners and
their teammates, Respondents leaked it to
representatives of the media, who promptly reported
its horrific allegations and appeared at the police
department to capture the court-ordered seizure and
detention of Petitioners for collection of their DNA
and close examination of their bodies for evidence of
the sensational crimes alleged in Respondents’
18
affidavits. App., infra, 101a-102a; C.A. App. 695-96,
851-53.
25. Petitioners were detained for several hours at
the police station, during which they were subjected
to a sequence of procedures. First, they were
compelled to provide their home addresses; then
they were compelled to submit to police collection of
their DNA, then they were compelled to disrobe and
submit to a police officer’s close inspection of their
bodies
and
photographing
of
potentially
incriminating marks on their skin; and, finally, they
were required to submit to mug-shot photographs of
their face and profile. Within hours, the sweeping
NTO directed to all white members of the Duke
Men’s Lacrosse team, Respondents’ fabricated and
incendiary affidavits, and Petitioner’s station-house
detention to be searched for DNA and evidence
connecting them with the alleged gang rape were
being reported to a national and international
audience, thereby subjecting Petitioners to
unprecedented public ignominy. App., infra, 16a,
135a; C.A. App. 49, 695-96, 699, 703-704, 720-24,
851-53, 864.
B.
Procedural History
1. In December, 2007, Petitioners filed a civil
action in the United States District Court for the
Middle District of North Carolina against
Respondents and others, including the City of
Durham, North Carolina, Gottlieb, and Himan. As is
relevant here, Petitioners asserted claims under 42
U.S.C. § 1983 for violations of their Fourth and
Fourteenth Amendment rights as well as North
Carolina law. App., infra, 128a-130a. The district
19
court had subject matter jurisdiction under 28
U.S.C. §§ 1331, 1343(a), and 1367(a). Respondents
moved for dismissal on some claims and for
summary judgment on other claims. As is relevant
here, the district court denied Respondents’ motion
to dismiss as to Count 1: Search and Seizure in
Violation of 42 U.S.C. § 1983 and Conspiracy. App.,
infra, 146a-147a.5
2. The district court considered Plaintiffs
allegations documenting the Affidavits’ false
statements and material omissions. Based on those
well pleaded allegations, the district court concluded
that the complaint established Respondents’
“intentional or reckless use of false or misleading
evidence before a magistrate judge to obtain a
warrant and effect a search and seizure,” which “is
exactly the type of ‘unreasonable’ search and seizure
the Fourth Amendment is designed to protect
against.” App., infra, 346a (internal citations and
quotations omitted); see also App., infra, 143a-147a.
Further, the district court observed that:
If any concept is fundamental to our American
system of justice, it is that those charged with
upholding the law are prohibited from
deliberately fabricating evidence and framing
individuals for crimes they did not commit. In
this regard, the Supreme Court has long held
that a police officer violates the Fourth
Amendment if, in order to obtain a warrant,
The district court permitted Petitioners’ federal
constitutional claims to go forward against Levicy. App., infra,
151a. Based on the Fourth Circuit’s decision, Levicy has filed a
motion for judgment on the pleadings as to Count 1. Defs.’ Mot.
J. Pleadings, McFadyen v. Duke Univ., No. 1:07CV953
(M.D.N.C. Feb. 27, 2013) (ECF 335). That motion is currently
pending before the district court.
5
20
he deliberately or with reckless disregard for
the truth makes material false statements or
omits material facts. No reasonable police
officer could believe that the Fourth
Amendment permitted such conduct. Thus,
there can be no question that the Constitution
is violated when government officials
deliberately fabricate evidence and use that
evidence against a citizen, in this case by
allegedly making false and misleading
representations and creating false and
misleading evidence in order to obtain an
NTO against all of the lacrosse team members
and obtain a search warrant.
App., infra, at 346a-347a (internal citations and
quotations omitted).
3. Respondents appealed, and the appeal was
consolidated with appeals in other civil litigation
brought by Petitioners’ former teammates. As is
pertinent here, the Fourth Circuit reversed the
district court’s denial of Gottlieb and Himan’s
motions to dismiss, holding that the Fourth
Amendment does not require probable cause to
justify the station-house detention of Petitioners
during which they were compelled to disrobe and
submit
to
close
physical
inspection
and
photographing of their bodies and submit to cheek
swabbings for collection of their DNA in connection
with a criminal investigation. App., infra, 36a.
a. Using Franks v. Delaware, 438 U.S. 154
(1978) to guide its analysis, the Fourth Circuit panel
held that there was probable cause to believe that
Mangum was raped because “a rape allegation
paired with corroborating medical evidence.” App.,
infra, 35a. Petitioners need not quibble with that
21
major premise because the panel’s minor premise is
entirely incorrect. Petitioners’ allegations establish
not only that there was no corroborating medical
evidence but also that the medical evidence
contradicted Mangum’s claim. See supra Statement,
¶¶ 10-11.
Against all of those detailed allegations showing
that the medical evidence and records impugn
Mangum’s claim, the Fourth Circuit panel asserted
that Petitioners complaint “does not even mention
the nurse’s statements when detailing the false
statements in the NTO affidavits.” App., infra, 32a.
The only statement in Respondents’ Affidavit
attributed to the SANE nurse is that Mangum’s
“injuries and her behavior were consistent with a
traumatic experience.” C.A. App. 57. While it is not
obvious what a “traumatic experience” was meant to
convey, it would be fair to say that having been
thrown out of a car, first by Pittman and then by
Sgt. Shelton, and then subjected to involuntary
commitment proceedings would count as a
“traumatic experience.” It is also clear that the
Affidavits did not say that Mangum had injuries and
symptoms consistent with a violent gang rape.
Regardless,
Petitioners
devote
pages
of
allegations detailing facts that impugn the
Affidavits’ claim that “medical records and
interviews” corroborated Mangum’s rape claim. See,
e.g., C.A. App. 664 ¶¶ 308-09; 670 ¶¶ 324, 328; 671
¶ 330; 685 ¶ 382(F); 695 ¶ 414(A); 696 ¶ 416; 808
¶¶ 780-81; 851 ¶ 907; 852 ¶ 913; ¶¶ 659-71, ¶¶ 80716, ¶¶ 851-53; see also C.A. App. 659- 65, 670-671;
C.A. App. 671 ¶ 329-30; 811-12 ¶¶ 785-89; 852
¶¶ 910, 913. Although these allegations are clearly
material to whether there was probable cause to
22
believe Mangum was violently raped, the panel did
not consider them in its Franks analysis, nor did it
consider many of the allegations described, supra
Statement, ¶¶ 3-25.6 The panel should have, not only
because Plaintiffs are entitled to the assumption of
their truth on a motion to dismiss, but also because,
if it had considered them, it could not have found
that the corrected Affidavits established probable
cause to believe Mangum was gang raped at 610 N.
6 The Fourth Circuit panel declined consider many of
Petitioners’ detailed allegations documenting the NTO
Affidavit’s false statements and material omissions. App., infra,
33a n.7. The panel apparently believed that Petitioners were
asking the Court “to look to their complaints as a whole” to find
the material omissions and false statements in the NTO
affidavits. Id. That is incorrect. Nor do Petitioners “suggest[]
that defendants—and courts—should scour several-hundred
page complaints to discover which affidavit statements
plaintiffs allege are fabricated or misleading.” Id. To the
contrary, Petitioners’ allegations specify the material facts that
Respondents falsified and omitted. C.A. App. 643-72, 680-90,
695-704, 808-16, 851-53. And Petitioners’ brief to the Court of
Appeals also documents those detailed allegations in a line-byline analysis of the NTO affidavits in the section entitled “The
Franks Analysis.” Appellees’ Br. at 53-71, McFadyen v. Baker,
No. 11-1458 (4th Cir. Sept. 21, 2011) (ECF No. 69). Part A of
that section documents the facts that deprive the NTO of
probable cause to believe a crime occurred. Id. 54-68. Part B
documents the facts that deprive the NTO of probable cause
and “reasonable grounds” to believe any of Petitioners
participated in the alleged gang rape. Id. 68-71. At every step
in the analysis, Petitioners cited to the specific factual
allegations in the complaint that establish the false statements
and material omissions. Id. 53-71. Nevertheless, in analyzing
Petitioners’ Fourth Amendment claim the Court of Appeals did
not consider many of the false statements and material
omissions Petitioners alleged, which are summarized in
Petitioners’ Statement, supra.
23
Buchanan, and it would be unnecessary for the panel
to reach the question now presented in this petition.
b. The Fourth Circuit panel did reach that
question and held that the station-house detention
and invasive bodily searches that Petitioners
describe in their complaint could be justified under
the Fourth Amendment by the “reasonable grounds”
standard set out in the NTO statute, which the
Fourth Circuit acknowledged to be “a significantly
lower standard than probable cause” and could be
met with only “a minimal amount of objective
justification.” App., infra, 35a-36a.
While the Fourth Circuit expressed doubt that
Respondent’s partially-corrected NTO affidavits
would survive scrutiny under a probable cause
standard, it ruled that the station-house detention
and intrusive bodily searches for evidence that
Petitioners alleged did not require probable cause,
but, instead, only “reasonable grounds.” Id. On that
basis, the Fourth Circuit reversed the district court’s
denial of Respondents’ motion to dismiss, holding
that the partially-corrected affidavits met the
“significantly lower standard than probable cause”
that the NTO statute required. Id.7
As a result of its dismissal of the federal constitutional
claims against Gottlieb and Himan, the Fourth Circuit
dismissed Petitioners’ claims against the City of Durham under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and
Petitioners’ supervisory liability claims against City
supervisory officials. App., infra, 40a-42a.
7
24
REASONS FOR GRANTING THE PETITION
A.
The Fourth Circuit’s replacement of the
Fourth Amendment’s probable cause
requirement with a “significantly lower
standard” for station-house DNA searches
conflicts with this Court’s decisions and
creates a new conflict among the circuits
where none existed previously.
1. The Fourth Circuit ruled that the government
may seize a citizen, compel him to disrobe, subject
him to close inspection and photographing of his
body, and collect his DNA upon “a significantly lower
standard than probable cause.” App., infra, 36a. In
doing so, the Fourth Circuit decided an important
federal question in a way that conflicts with the
decisions of this Court in Davis v. Mississippi, 394
U.S. 721 (1969), Dunaway v. New York, 442 U.S. 200
(1979), Hayes v. Florida, 470 U.S. 811 (1985) and
other decisions of this Court prohibiting the State
from compelling a suspect to submit to station-house
detentions, even for brief fingerprinting, or intrusive
bodily searches without probable cause and a
warrant. The Fourth Circuit’s decision also conflicts
with two of the Court’s decisions this term: Missouri
v. McNeely, 133 S. Ct. 1552 (Apr. 17, 2013) and
Maryland v. King, 569 U.S. ___, No. 12-207 (June 3,
2013).
a. In Davis v. Mississippi, this Court held that
the Fourth Amendment does not tolerate a “dragnet”
seizure of “24 Negro youths” without probable cause
and a warrant, even though the seizures were “solely
for the purpose of collecting fingerprints.” 394 U.S.
at 726-728 (holding fingerprints taken from
25
defendant while briefly detained at the police station
without probable cause must be excluded from
evidence). The Court rejected the State’s contention
that the detention “was of a type which does not
require probable cause” because it occurred during
the investigative, rather than accusatory stage of the
criminal proceedings, and because it was solely for
the purpose of taking fingerprints. Id. at 726. The
Court rejected the State’s attempt to draw lines
between detentions in the investigatory and the
accusatory stage, because doing so “is fundamentally
to misconceive the purposes of the Fourth
Amendment” and permitting “investigatory seizures”
and station-house detentions without probable cause
“would subject unlimited numbers of innocent
persons to the harassment and ignominy incident to
involuntary detention.” Id. The Court also rejected
the State’s argument that taking a suspect’s
fingerprints should not require probable cause and a
warrant because it “involves none of the individual’s
private life and thoughts that marks an
interrogation or search” because the State had not
merely taken Davis’ fingerprints in a brief encounter
on the street, but instead compelled him to come to
the police station to take his fingerprints and, while
there, asked him several questions. Id. at 728.
Davis therefore held that a seizure and stationhouse detention of a suspect, even if brief and for the
purpose of taking his fingerprints, required probable
cause and a warrant (or exigent circumstances), and
did not address “whether the requirements of the
Fourth Amendment could be met by narrowly
circumscribed procedures for obtaining . . .
fingerprints of individuals for whom there is no
probable cause to arrest,” id. at 728, at least in
26
circumstances “falling short of the ‘dragnet’
procedures employed” by the police in that case, id.
at 729 (Harlan, J. concurring).
b. In Dunaway v. New York, the Court relied on
and reaffirmed the holding in Davis that investigative
detentions at the police station for the purpose of
taking fingerprints could not be squared with the
Fourth Amendment. 442 U.S. at 213-216. On that
basis, the Court held that the Rochester police
violated the Fourth Amendment when they detained a
suspect at the police station for interrogation without
probable cause, regardless of how scrupulously the
police guarded the suspect’s Fifth and Sixth
Amendment rights. As in Davis, the Court rejected
the State’s contention that the detention of the
suspect at the police station did not amount to an
arrest and could therefore be justified by a
“reasonable suspicion” that the suspect “possessed
intimate knowledge about a serious and unsolved
crime.” Id. at 207. The Court refused to apply the
“reasonable suspicion” standard applicable to the
“special category” of search and seizure recognized in
Terry v. Ohio, 392 U.S. 1 (1968) (i.e., “a brief on-thespot stop on the street and a frisk for weapons”) to the
detention of a suspect at the police station for
purposes of interrogation. Id. The Court explained
that, before Terry, “while warrants were not required
in all circumstances, the requirement of probable
cause . . . was treated as absolute,” and “because Terry
involved an exception to the general rule requiring
probable cause, the Court has been careful to
maintain its narrow scope.” Dunaway, 442 U.S. at
209-211; see id. at 208 (“The long prevailing standards
of probable cause embod[y] the best compromise . . .
for accommodating the often opposing interests in
27
safeguarding citizens from rash and unreasonable
interferences with privacy and . . . giv[ing] fair leeway
for enforcing the law in the community’s protection”)
(internal quotations and punctuation omitted).
Thus, the Court held that, in light of the Fourth
Amendment’s “absolute” requirement of probable
cause to justify police detention of a suspect at the
police station for investigative purposes, the
constitutional “impropriety” of detaining Dunaway
at the police station without probable cause “was
obvious” since the detention “both in design and in
execution, was investigatory.” Id. at 216 (noting that
the police “embarked upon this expedition for
evidence” based on the “hope that something might
turn up” (quoting Brown v. Illinios, 422 U.S. 590,
605 (1975)).
c. Likewise, in Hayes v. Florida, the Court held
that police violated the Fourth Amendment when,
without probable cause, they compelled a suspect to
go to the police station without his consent and
detained him there for purposes of taking his
fingerprints. 470 U.S. 811. The Court reversed the
Florida appeals court’s ruling that the officers could
compel a suspect to go to the police station and
detain him there to take his fingerprints “on the
basis of their reasonable suspicion that he was
involved in the crime.” Id. at 813. The Court
explained that its holding in Davis required reversal
of the Florida court’s decision, noting that it is “not a
sufficient answer to the Fourth Amendment . . . to
recognize that fingerprinting is an inherently more
reliable and effective crime-solving mechanism than
other types of evidence” or that it “represents a much
less serious intrusion upon personal security than
other types of searches and detentions.” Id. at 814.
28
The Court also noted that none of its decisions after
Davis “have undercut the holding in Davis” or
otherwise authorized the involuntary detention of a
suspect at a police station for investigative purposes
without probable cause. Id. at 815. The Court also
clarified its dictum in Davis, explaining that “none of
the foregoing implies that a brief detention in the
field for the purpose of fingerprinting, where there is
only reasonable suspicion not amounting to probable
cause, is necessarily impermissible under the Fourth
Amendment.” Id. at 816 (emphasis added).
d. Moreover, before and after Davis, this Court
has held that, like station-house detentions for
investigative purposes, intrusive bodily searches for
evidence in a criminal investigation require probable
cause and a warrant (or exigent circumstances). In
Schmerber v. California, the Court authorized the
taking of a suspect’s blood sample without a warrant
because there was “plainly probable cause” and
exigent circumstances to excuse the warrant
requirement (i.e., the evidentiary value of the blood
sample would have been lost in the time it would
have taken to obtain a warrant). 384 U.S. 757 (1966).
Likewise, in Cupp v. Murphy, police forcibly took
scrapings from underneath a suspect’s fingernails
based on probable cause but without a warrant. 412
U.S. 291 (1973). The Court held that the search
required probable cause, which the police had, and
that the absence of a warrant did not violate the
Fourth Amendment because the police believed a spot
on the suspect’s finger was dried blood from the
murder of his wife and they observed the suspect
trying to destroy it. Id. at 296. The Court held that
the Fourth Amendment was satisfied by “the
existence of probable cause, the very limited intrusion
29
undertaken . . . , and the ready destructibility of the
evidence.” Id. And, in Winston v. Lee, the Court held
that the government--even with probable cause and a
court order--could not force the suspect to permit a
physician to extract evidence (a bullet) lodged under
his collarbone. 470 U.S. 753 (1985).
e. In this term alone, the Court has resolved two
cases
addressing
the
Fourth
Amendment’s
requirements when the government seeks to conduct
an intrusive search of a suspect’s body for evidence
of a crime. In McNeely, the Court not only confirmed
that police could not take a blood sample from a
suspect without probable cause and a warrant, but
also that the warrant requirement cannot be excused
categorically but rather only upon proof of a casespecific exigency. 133 S. Ct. at 1556, 1558, 1568
(rejecting a per se rule of exigency for taking blood
samples in impaired driving cases).
In Maryland v. King, the Court held that when a
person is incarcerated based on probable cause to
believe he committed a serious crime, the State may
take a cheek swab of his DNA, but only if the State’s
justifying purpose for collecting the DNA is not the
investigation of crime. 569 U.S. ___, slip op. at 25,
28 (majority opinion). The Court upheld Maryland’s
DNA collection program because its justifying motive
was noninvestigative and it was “a legitimate police
booking procedure” for the purpose of identifying
individuals who are in the State’s custody and
appropriately placing them in its prison population.
Id. slip op. at 28 (majority opinion). The Court
limited its holding to “the context of a valid arrest
supported by probable cause” because that context
“gives rise to significant state interests in identifying
[the accused] not only so that the proper name can
30
be attached to his charges but also so that the
criminal justice system can make informed decisions
concerning pretrial custody.” Id.
B.
Allowing the Fourth Circuit’s decision to
stand would suggest that Maryland v.
King is not limited to DNA searches for
noninvestigative purposes, thereby leaving
unsettled the important question of what
the limits of King really are.
In this case, the Fourth Circuit ruled that, under
the Fourth Amendment, “a significantly lower
standard than probable cause” was enough to justify
a court order authorizing police to seize 46 young
men, to compel them to disrobe, and to search their
persons by close examination and photographing of
their bodies and swabbing the inside of their mouths
to collect DNA and other evidence in a criminal
investigation. App., infra, 36a. That ruling squarely
conflicts with this Court’s decisions, beginning no
later than 1969 in Davis, and continuing through the
two cases decided this very term, McNeely and King.
And if any plausible doubt on that issue remained
after Davis and its progeny, it was extinguished in
King, where, in a sharply divided opinion, not one
justice suggested that any quantum of proof less
than probable cause would justify the detention and
intrusive bodily search of a suspect solely for the
purpose of collecting evidence of a crime. See King,
569 U.S. ___, slip op. at 9, 11, 25, 28 (majority
opinion); id. at 1-4 (Scalia, J., dissenting).
King confirmed the proposition that this Court
made perfectly clear long ago in Davis: the Fourth
Amendment bars the State from employing “dragnet
31
procedures” in which a large group of young men of a
particular race (there “24 Negro youths,” here “46
white students”) are seized, detained, and searched
for evidence of a crime (there fingerprints, here DNA
and disrobing for close examination and photographs
of the body) without a warrant supported by
probable cause as to each individual. Davis, 394 U.S.
at 726-28; see also King, 569 U.S. ___, slip op. at 9,
25, 28 (majority opinion); id. at 1-4 (Scalia, J.,
dissenting). “Individualized suspicion” has always
been the core principle of the Fourth Amendment
since its framing and remains so in order to protect
“the sole group for whom the Fourth Amendment’s
protections ought to be most jealously guarded:
people who are innocent of the State’s accusations,” a
group
that,
Respondents
concede,
includes
Petitioners McFadyen, Wilson, and Archer. See King,
569 U.S. ___, slip op. at 18 (Scalia, J., dissenting).
Here, no credible evidence corroborated the
allegation that Mangum was gang raped at 610 N.
Buchanan. Indeed, no probable cause ever existed to
believe Mangum was violently gang raped in a tiny
bathroom at 610 N. Buchanan Blvd., or that
McFadyen, Wilson, or Archer participated in any
such crime. To the contrary, McFadyen, Wilson, and
Archer were all excluded as plausible suspects by
Mangum’s descriptions of her attackers and her
failure to recognize their photos. And, as set out
above, the allegation that Mangum was subjected to
a 30-minute, violent gang rape in a small bathroom
is impugned by the medical, forensic, digital and
testimonial evidence, including Mangum’s own
contradictory statements, all of which were known to
Respondents at the time they sought the NTO.
32
Nevertheless, the Fourth Circuit adopted a new
“significantly lower” standard to replace the Fourth
Amendment’s requirement of probable cause and a
warrant for station-house detentions in which a
suspect is compelled to submit to invasive bodily
searches and DNA collection in furtherance of a
criminal investigation. And based on that new
standard, the Court concluded that Fourth
Amendment permitted Respondents to subject
Petitioners and 43 other “white youths” to dragnet
station-house detentions and invasive bodily
searches to collect evidence in furtherance of a
criminal investigation. App. infra, 36a.
Allowing the Fourth Circuit to replace the Fourth
Amendment’s probable cause requirement with the
“significantly lower standard” would not only create a
new conflict among the circuits where none currently
exists, but also would suggest that the Court’s recent
holding in Maryland v. King is not limited to DNA
collection for noninvestigative purposes, thereby
leaving unsettled the vitally important question of
what the limits of the holding in King really are.
Therefore, this case presents a timely and appropriate
vehicle for the Court to clarify the limits of its holding
in King and to reaffirm the half-century of precedent
that the Fourth Circuit’s decision would otherwise
throw into confusion.
33
CONCLUSION
The petition for a writ of certiorari should be
granted. If the Court agrees that its decision in
Maryland v. King fully resolves the question
presented, the Court should summarily reverse the
Fourth Circuit’s decision and remand for
reconsideration in light of its decision in Maryland v.
King. If not, then this case raises a federal question
that are too important to leave unsettled and should
be resolved by this Court, including the reach of
Maryland v. King, and this case provides an
excellent vehicle for the Court to squarely answer it.
Respectfully submitted,
Samantha J. Ekstrand
Counsel of Record
Robert C. Ekstrand
Stefanie Sparks Smith
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
(919) 416-4590
SJE@ninthstreetlaw.com
June, 13, 2013
APPENDIX
ia
APPENDIX TABLE OF CONTENTS
Page
Published Opinion and Judgment of
The United States Court of Appeals for
The Fourth Circuit
entered December 17, 2012 ........................... 1a
Memorandum Opinion and Order of
The United States District Court for
The Middle District of North Carolina
entered March 31, 2011 ............................... 83a
Order of
The United States Court of Appeals for
The Fourth Circuit
Re: Denying Petition for Rehearing En Banc
entered January 15, 2013 .......................... 352a
N.C. Gen. Stat. § 15A-271 .................................... 356a
N.C. Gen. Stat. § 15A-273 .................................... 357a
N.C. Gen. Stat. § 5A-12 ........................................ 358a
1a
[ENTERED DECEMBER 17, 2012]
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID F. EVANS; COLLIN FINNERTY;
READE SELIGMANN,
Plaintiffs-Appellees,
v.
STEVEN W. CHALMERS; BEVERLY
COUNCIL; RONALD HODGE; JEFF
LAMB; MICHAEL RIPBERGER; LEE
RUSS; PATRICK BAKER,
Defendants-Appellants,
and
No. 11-1436
CITY OF DURHAM, NORTH CAROLINA;
MARK GOTTLIEB; BENJAMIN HIMAN;
DAVID ADDISON; MICHAEL NIFONG;
LINWOOD WILSON; STEPHEN
MIHAICH; DNA SECURITY,
INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN,
Defendants.
2a
DAVID F. EVANS; COLLIN FINNERTY;
READE SELIGMANN,
Plaintiffs-Appellees,
v.
CITY OF DURHAM, NORTH CAROLINA;
MARK GOTTLIEB; BENJAMIN HIMAN;
DAVID ADDISON,
Defendants-Appellants,
and
No. 11-1438
MICHAEL NIFONG; LINWOOD
WILSON; STEVEN W. CHALMERS;
BEVERLY COUNCIL; RONALD HODGE;
JEFF LAMB; STEPHEN MIHAICH;
MICHAEL RIPBERGER; LEE RUSS;
DNA SECURITY, INCORPORATED;
RICHARD CLARK; BRIAN MEEHAN;
PATRICK BAKER,
Defendants.
3a
EDWARD CARRINGTON; CASEY J.
CARROLL; MICHAEL P. CATALINO;
GALE CATALINO; THOMAS V. CLUTE;
KEVIN COLEMAN; JOSHUA R.
COVELESKI; EDWARD J. CROTTY;
EDWARD S. DOUGLAS; KYLE DOWD;
PATRICIA DOWD; DANIEL FLANNERY;
RICHARD GIBBS FOGARTY; ZACHARY
GREER; IRENE GREER; ERIK S.
HENKELMAN; STEVEN W.
HENKELMAN; JOHN E. JENNISON;
BEN KOESTERER; MARK KOESTERER;
JOYCE KOESTERER; FRED KROM;
PETER J. LAMADE; ADAM LANGLEY;
CHRISTOPHER LOFTUS; DANIEL No. 11-1453
LOFTUS; BARBARA LOFTUS;
ANTHONY MCDEVITT; GLENN NICK;
NICHOLAS O’HARA; LYNNDA
O’HARA; DANIEL OPPEDISANO; SAM
PAYTON; JOHN BRADLEY ROSS;
KENNETH SAUER, III; STEVE
SCHOEFFEL; ROBERT SCHROEDER;
DEVON SHERWOOD; DANIEL
THEODORIDIS; BRET THOMPSON;
CHRISTOPHER TKAC; TRACY TKAC;
JOHN WALSH, JR.; MICHAEL WARD;
ROBERT WELLINGTON, IV; WILLIAM
WOLCOTT; MICHAEL YOUNG,
Plaintiffs-Appellees,
4a
v.
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants-Appellants,
and
DUKE UNIVERSITY; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; RICHARD BRODHEAD;
PETER LANGE; LARRY MONETA;
BURNESS; TALLMAN TRASK;
SUZANNE WASIOLEK; MATTHEW
DRUMMOND; AARON GRAVES;
ROBERT DEAN; TARA LEVICY;
THERESA ARICO; J. WESLEY
COVINGTON; KATE HENDRICKS;
VICTOR DZAU; CITY OF DURHAM;
LINWOOD WILSON; MARK GOTTLIEB;
BENJAMIN HIMAN; STEPHEN
MIHAICH; DAVID ADDISON; MARSHA
COVINGTON, Executrix of the Estate
of John Wesley Covington,
Defendants.
JOHN
5a
RYAN MCFADYEN; MATTHEW
WILSON; BRECK ARCHER,
Plaintiffs-Appellees,
v.
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants-Appellants,
and
No. 11-1458
DUKE UNIVERSITY; DUKE
UNIVERSITY POLICE DEPARTMENT;
AARON GRAVES; ROBERT DEAN;
LEILA HUMPHRIES; PHYLLIS COOPER;
WILLIAM F. GARBER, III; 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.; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; PRIVATE DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD;
THERESA ARICO, R. N.; TARA
LEVICY, R. N.; THE CITY OF
DURHAM, NORTH CAROLINA;
MICHAEL NIFONG; STEPHEN
6a
MIHAICH; EDWARD SARVIS;
LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE MICHAEL; DAVID ADDISON;
MARK D. GOTTLIEB; BENJAMIN W.
HIMAN; LINWOOD WILSON; RICHARD
D. CLAYTON; DNA SECURITY,
INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN, Ph. D.; VICTOR J.
DZAU, MD; ALLISON HALTON;
KEMEL DAWKINS; SUZANNE
WASIOLEK; STEPHEN BRYAN;
MATTHEW DRUMMOND; DUKE
POLICE DEFENDANTS,
Defendants.
RYAN MCFADYEN; MATTHEW
WILSON; BRECK ARCHER,
Plaintiffs-Appellees,
v.
No. 11-1460
THE CITY OF DURHAM, NORTH
CAROLINA; DAVID ADDISON; MARK
GOTTLIEB; BEJAMIN HIMAN,
Defendants-Appellants,
and
DUKE UNIVERSITY; DUKE
UNIVERSITY POLICE DEPARTMENT;
AARON GRAVES; ROBERT DEAN;
LEILA HUMPHRIES; PHYLLIS COOPER;
7a
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.; DUKE
UNIVERSITY HEALTH SYSTEMS,
INCORPORATED; PRIVATE DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD;
THERESA ARICO, R. N.; TARA
LEVICY, R. N.; MICHAEL NIFONG;
STEPHEN MIHAICH; EDWARD SARVIS;
LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE MICHAEL; LINWOOD
WILSON; RICHARD D. CLAYTON;
DNA SECURITY, INCORPORATED;
RICHARD CLARK; BRIAN MEEHAN,
Ph. D.; VICTOR J. DZAU, MD;
ALLISON HALTON; KEMEL DAWKINS;
SUZANNE WASIOLEK; STEPHEN
BRYAN; MATTHEW DRUMMOND;
DUKE POLICE DEFENDANTS; PATRICK
BAKER; STEVEN W. CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER,
Defendants.
8a
EDWARD CARRINGTON; CASEY J.
CARROLL; MICHAEL P. CATALINO;
GALE CATALINO; THOMAS V. CLUTE;
KEVIN COLEMAN; JOSHUA R.
COVELESKI; EDWARD J. CROTTY;
EDWARD S. DOUGLAS; KYLE DOWD;
PATRICIA DOWD; DANIEL FLANNERY;
RICHARD GIBBS FOGARTY; ZACHARY
GREER; IRENE GREER; ERIK S.
HENKELMAN; STEVEN W.
HENKELMAN; JOHN E. JENNISON;
BEN KOESTERER; MARK KOESTERER;
JOYCE KOESTERER; FRED KROM;
PETER J. LAMADE; ADAM LANGLEY;
CHRISTOPHER LOFTUS; DANIEL No. 11-1465
LOFTUS; BARBARA LOFTUS;
ANTHONY MCDEVITT; GLENN NICK;
NICHOLAS O’HARA; LYNNDA
O’HARA; DANIEL OPPEDISANO; SAM
PAYTON; JOHN BRADLEY ROSS;
KENNETH SAUER, III; STEVE
SCHOEFFEL; ROBERT SCHROEDER;
DEVON SHERWOOD; DANIEL
THEODORIDIS; BRET THOMPSON;
CHRISTOPHER TKAC; TRACY TKAC;
JOHN WALSH, JR.; MICHAEL WARD;
ROBERT WELLINGTON, IV; WILLIAM
WOLCOTT; MICHAEL YOUNG,
Plaintiffs-Appellees,
9a
v.
CITY OF DURHAM; MARK GOTTLIEB;
BENJAMIN HIMAN; DAVID ADDISON,
Defendants-Appellants,
and
PATRICK BAKER; STEVEN CHALMERS;
RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB;
MICHAEL RIPBERGER; DUKE
UNIVERSITY; DUKE UNIVERSITY
HEALTH SYSTEMS, INCORPORATED; RICHARD
BRODHEAD; PETER LANGE;
LARRY MONETA; JOHN BURNESS;
TALLMAN TRASK; SUZANNE
WASIOLEK; MATTHEW DRUMMOND;
AARON GRAVES; ROBERT DEAN;
TARA LEVICY; THERESA ARICO; J.
WESLEY COVINGTON; KATE
HENDRICKS; VICTOR J. DZAU;
LINWOOD WILSON; STEPHEN
MIHAICH; MARSHA COVINGTON,
Executrix of the Estate of John
Wesley Covington,
Defendants.
Appeals from the United States District Court
for the Middle District of North Carolina, at
Durham.
James A. Beaty, Jr., Chief District Judge.
10a
(1:07-cv-00739-JAB-WWD; 1:08-cv-00119-JABWWD; 1:07-cv-00953-JAB-WWD)
Argued: September 18, 2012
Decided: December 17, 2012
Before WILKINSON, MOTZ, and GREGORY,
Circuit Judges.
Affirmed in part, dismissed in part, reversed in part,
and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Wilkinson
concurred and Judge Gregory concurred except as to
Parts III-B and III-B.1. Judge Wilkinson wrote a
concurring opinion. Judge Gregory wrote an opinion
concurring in part and dissenting in part.
COUNSEL
ARGUED: Michael A. Vatis, STEPTOE &
JOHNSON, LLP, New York, New York, for
Appellants.
Christopher
Nicholas
Manning,
WILLIAMS & CONNOLLY, LLP, Washington,
D.C.; Robert Christopher Ekstrand, EKSTRAND &
EKSTRAND, LLP, Durham, North Carolina; Peter
A. Patterson, COOPER & KIRK, PLLC, Washington,
D.C., for Appellees.
ON BRIEF: Patricia P. Shields, D. Martin Warf,
TROUTMAN SANDERS, LLP, Raleigh, North
Carolina, for Appellants Steven W. Chalmers,
Beverly Council, Ronald Hodge, Jeff Lamb, Michael
Ripberger, Lee Russ, and Patrick Baker; Roger E.
Warin, Matthew J. Herrington, Leah M. Quadrino,
11a
John P. Nolan, STEPTOE & JOHNSON, LLP,
Washington, D.C., Reginald B. Gillespie, Jr.,
FAISON & GILLESPIE, Durham, North Carolina,
for the City of Durham; Edwin M. Speas, Jr., Eric P.
Stevens, POYNER & SPRUILL LLP, Raleigh, North
Carolina, for Appellant Mark Gottlieb; Joel M. Craig,
Henry W. Sappenfield, KENNON, CRAVER, PLLC,
Durham, North Carolina, for Appellant Benjamin
Himan; James B. Maxwell, MAXWELL, FREEMAN
& BOWMAN, PA, Durham, North Carolina, for
David Addison. David S. Rudolf, RUDOLF
WIDENHOUSE & FIALKO, Charlotte, North
Carolina, Richard D. Emery, Ilann M. Maazel,
EMERY CELLI BRINCKERHOFF & ABADY LLP,
New York, New York, for Appellee Reade Seligmann;
Robert M. Cary, Charles Davant IV, Ashley W.
Hardin,
WILLIAMS
&
CONNOLLY,
LLP,
Washington, D.C., for Appellees David F. Evans, and
Collin Finnerty. William J. Thomas II, THOMAS,
FERGUSON & MULLINS, LLP, Durham, North
Carolina; Brian S. Koukoutchos, Mandeville,
Louisiana; Charles J. Cooper, David H. Thompson,
COOPER & KIRK, PLLC, Washington, D.C., for
Appellees
Carrington.
Stefanie
A.
Sparks,
EKSTRAND & EKSTRAND, LLP, Durham, North
Carolina, for Appellees McFadyen.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
These appeals arise from allegations that the
City of Durham and its officials mishandled false
rape charges made against members of the 2005-
12a
2006 Duke University lacrosse team. The City and
its officials asserted various immunities from suit
and on that basis moved to dismiss, or for summary
judgment, as to all claims alleged against them. The
district court granted those motions in part and
denied them in part. The City and its officials
appeal. There is no cross-appeal. For the reasons
that follow, we affirm in part, dismiss in part,
reverse in part, and remand for further proceedings.
I.
Three groups of plaintiffs brought these cases.
We set forth the relevant facts as alleged in their
amended complaints. Although the complaints are
not identical, they differ only minimally. We note all
relevant differences.
A.
According to the amended complaints, on the
evening of March 13-14, 2006, many members of the
Duke lacrosse team attended a party at the Durham,
North Carolina home of team co-captains David
Evans, Daniel Flannery, and Matthew Zash. One of
the hosts had hired two exotic dancers, Crystal
Mangum and Kim Pittman, to perform at the party.
Mangum (who appeared to be intoxicated) and
Pittman performed only briefly from midnight to
12:04. Approximately forty minutes later, the two
women left the party together in Pittman’s car.
After leaving the party, Mangum became
belligerent and accused Pittman of stealing her
money. Pittman pulled into a grocery store parking
13a
lot and asked a nearby security guard for assistance
in removing Mangum from her car. After the guard
determined that Mangum in fact was intoxicated, he
called Durham police. When Sergeant John Shelton
arrived
at
the
scene,
Mangum
feigned
unconsciousness. Sergeant Shelton instructed
another officer to take Mangum to the Durham
Access Center, an outpatient mental health clinic
with a mandatory twenty-four hour observation
period for involuntarily admitted patients. During
her intake interview, Mangum asserted that she had
been raped by nodding “yes” to the question “Were
you raped?” Because of her allegation, Mangum was
transported to the Duke Medical Center for a sexual
assault examination.
At the Duke Medical Center, Sergeant Shelton
questioned Mangum regarding her rape allegations.
Mangum then denied being raped, but contended
that someone had stolen her money. Soon after this
recantation, Mangum told another officer she had
been raped by as many as five men after performing
at a bachelor party. Over the course of that night
and the next few days, Mangum provided multiple,
vastly inconsistent versions of her rape to medical
personnel and police officers. Her accounts differed
not only as to how many men had raped her (ranging
from three to twenty), but also as to how they raped
her (orally, vaginally, or anally).
Nurses at the Duke Medical Center performed
a rape kit examination to document physical
evidence of sexual assault. Some plaintiffs allege
that Nurse Tara Levicy interviewed Mangum, who
told the nurse that three white men—named Adam,
14a
Brett, and Matt—had raped her orally, vaginally,
and anally, had not worn condoms, and had
ejaculated in her mouth, vagina, and anus. A doctor
performed a pelvic examination on Mangum and
noted only one abnormality—diffuse edema of the
vaginal walls—which Nurse Levicy then recorded on
a sexual assault examination report.
Officer B.S. Jones, who was initially assigned
to investigate Mangum’s allegations, believed that
no evidence supported proceeding with a criminal
investigation. Nonetheless, during the next two days
(March 15-16), the case was reassigned to Officers
Mark Gottlieb and Benjamin Himan. When Officers
Gottlieb and Himan interviewed Mangum for the
first time on March 16, Mangum told them that she
was raped by three white men –- Adam, Brett, and
Matt -– and provided physical descriptions of the
attackers. Later that day, based on her descriptions,
Durham Police administered a photo array to
Mangum limited to pictures of twenty-four white
members of the Duke lacrosse team. Mangum did
not identify any of the men in the photographs as
her attackers, though she did identify men who she
believed had attended the party.
On the same day, March 16, Officers Gottlieb
and Himan executed a search warrant for the site of
the March 13-14 party. The three residents—Evans,
Flannery, and Zash— complied with the execution of
the search warrant, consented to lengthy police
interviews, submitted to physical inspections for
signs of rape, and provided DNA and hair samples.
15a
Four days later, on Monday, March 20, Officer
Himan interviewed Mangum’s fellow dancer,
Pittman, who asserted that Mangum’s rape
allegations were a “crock” and that there had been
no opportunity for an assault to have occurred out of
Pittman’s presence at the party. On March 22,
Officers Gottlieb and Himan used an outstanding
arrest warrant and the threat of revocation of
probation to induce Pittman to recant her initial
statement calling the rape allegations a “crock,” and
to create a fictional window of opportunity in her
story when the rape could have been committed. In
the meantime, Durham Police arranged a second
photo array of members of the Duke lacrosse team.
Once again, Mangum could not identify any
attacker.
During this same time period, Officer Gottlieb
served a subpoena on Nurse Levicy to obtain the
Medical Center’s sexual assault examination report.
Some plaintiffs allege that Nurse Levicy previously
had indicated to Officer Gottlieb that the
examination of Mangum had revealed “signs
consistent with sexual assault,” but had refused to
turn over the report without a subpoena. Once
Officer Gottlieb returned with the subpoena, Nurse
Levicy misled Gottlieb about the extent of the
evidence of sexual assault, claiming that the
examination had also revealed physical evidence of
“blunt force trauma” and other symptoms “consistent
with the victim’s statement.”
Two days later, on Thursday, March 23,
Officers Gottlieb and Himan, using Nurse Levicy’s
corroborating statements, obtained court approval
16a
for a non-testimonial order (“NTO”). The NTO
required the forty-six white lacrosse team members
to provide DNA samples, sit for photographs, and
submit to examination for injuries consistent with
struggle during a sexual assault. The police offered
two affidavits in support of the NTO—one to
establish probable cause that a crime had been
committed, the other to establish reasonable grounds
that the subjects might have committed the crime.
The NTO affidavits explained that “[t]he DNA
evidence requested will immediately rule out any
innocent persons, and show conclusive evidence as to
who the suspect(s) are in the alleged violent attack
upon this victim.” The team members fully complied
with the NTO.
B.
The next day, Friday, March 24 (ten days
after the alleged rape), District Attorney Michael
Nifong took over the investigation. Durham Police
Commander Jeff Lamb instructed Officers Gottlieb
and Himan to take direction in the rape
investigation from Nifong.
On Monday morning, March 27, Officers
Gottlieb and Himan briefed Nifong on the case. At
this briefing, the officers detailed the exculpatory
evidence, including contradictions in Mangum’s
allegations and the negative results of the photo
arrays. Recognizing the weakness of the case, Nifong
responded, “You know, we’re f*cked.”
Nonetheless, the investigation continued.
Later that morning, Officer Gottlieb obtained from a
17a
confidential source an email that a lacrosse team
member, Ryan McFadyen, had sent to his
teammates only hours after the party at which the
rape assertedly occurred. The email stated:
tomorrow night . . . ive decided to have
some strippers over to edens 2c. all are
welcome.. however there will be no
nudity. i plan on killing the bitches as
soon as they walk in and proceeding to
cut their skin off while cumming in my
duke issue spandex. . . . 41
McFadyen’s dormitory address was Edens 2C, and
his lacrosse jersey number was 41. Officers Gottlieb
and Himan added the text of the email to the
information from the NTO affidavits and applied for
and executed a search warrant on McFadyen’s dorm
room, adding to the list of suspected crimes
“conspiracy to commit murder.”
Meanwhile, on March 24 and 25, Durham
police spokesperson Corporal David Addison made a
series of public statements regarding the case. On
March 24, Corporal Addison told local and national
reporters that the investigation had produced
“really, really strong physical evidence” of rape. In
explaining the scope of the NTO, Corporal Addison
told one reporter: “You are looking at one victim
brutally raped. If that was someone else’s daughter,
child, I don’t think 46 [suspects] would be a large
enough number to figure out exactly who did it.” The
next day, Corporal Addison stated: “We’re asking
someone from the lacrosse team to step forward. We
18a
will be relentless in finding out who committed this
crime.”
By March 28, the State Bureau of
Investigation had concluded its examination of
evidence from Mangum’s rape kit and the DNA
collected from the plaintiffs under the NTO. By
March 29, the State Bureau of Investigation had
notified Nifong of the results: the state examination
revealed no DNA from anyone in Mangum’s rape kit
or her clothing. Nevertheless, Nifong sought a
second, more sensitive DNA analysis at a private
laboratory, DNA Security, Inc. On April 5, Nifong
obtained a judicial order to transfer the rape kit and
NTO evidence to the private laboratory.
Meanwhile, the day before, on April 4, Officer
Gottlieb administered a third photo array to
Mangum. This photo array contained pictures of all
forty-six white members of the Duke lacrosse team;
the police officers informed Mangum that they had
reason to believe everyone pictured had been at the
party. During this photo array, Mangum identified
three team members as her attackers—David Evans
with 90% certainty, Collin Finnerty with 100%
certainty, and Reade Seligmann with 100%
certainty.
From April 7 through April 10, the private
laboratory analyzed the rape kit and NTO evidence.
On April 10, employees from the private laboratory
met with Nifong and Officers Gottlieb and Himan to
report the results of the analyses. Although the
private laboratory found that several men
contributed DNA to the items in Mangum’s rape kit,
19a
the analyses excluded with 100% certainty every
member of the Duke lacrosse team as a potential
contributor of that DNA. Knowing that the private
laboratory’s results would prevent an indictment,
neither Nifong nor the officers disclosed the results
to the players or their attorneys. However, the state
laboratory’s initial report—finding no DNA from
anyone in Mangum’s rape kit—was released to the
public later that day.
Notwithstanding two negative DNA analyses,
Mangum’s inconsistent testimony, and Pittman’s
initial repudiation of Mangum’s allegations, Nifong
continued pursuing the case. On April 17, Nifong
sought and successfully obtained indictments
against Collin Finnerty and Reade Seligmann for
first-degree rape, first-degree sex offense, and
kidnapping. On May 12, Nifong provided a report
detailing the private laboratory’s DNA results to
counsel for Finnerty and Seligmann. However, the
report excluded the fact that the private laboratory
had conclusively eliminated every member of the
Duke lacrosse team as a potential contributor of the
DNA found in the rape kit. Nifong, along with
Officers Gottlieb and Himan, had worked with the
private laboratory to ensure that the report
remained ambiguous and misleading on this point.
On May 15, based partly on the private laboratory’s
misleading report, Nifong sought and obtained an
indictment against David Evans for first-degree
rape, first-degree sexual offense,and kidnapping.
Over the next few months, Nifong
intentionally misrepresented and misstated material
facts to opposing counsel and the state trial judge
20a
regarding the private laboratory’s DNA report. On
September 22, the state judge issued an order
requiring Nifong to provide the indicted lacrosse
players with the complete files and underlying data
from both the State and private laboratory analyses.
After complying with the order, Nifong denied prior
knowledge that the private laboratory test had ruled
out all lacrosse team members as contributors of
DNA in Mangum’s rape kit. However, on December
15, employees from the private laboratory admitted
to conspiring with Nifong to obfuscate the results of
its DNA analyses.
On December 21, in an interview with a
Durham police officer, Mangum recanted her rape
allegation for the first time since the night of the
alleged rape. Mangum, however, still maintained
that she had been assaulted. Nifong dismissed the
charges of first degree rape, but continued the
prosecutions of the sexual assault and kidnapping
charges.
The North Carolina State Bar subsequently
filed an ethics complaint against Nifong based on his
conduct in the Mangum rape investigation. On
January 12, 2007, Nifong recused himself from the
criminal cases arising from Mangum’s allegations.
On April 11, after a thorough, independent review,
the Attorney General of North Carolina, noting the
inconsistency in Mangum’s statements, Mangum’s
suspect credibility, and the DNA reports
demonstrating no rape by the indicted men,
dismissed the remaining charges against Evans,
Finnerty, and Seligmann. On June 16, Nifong was
21a
disbarred for his conduct during the Mangum
investigation and prosecution.
C.
Based on the above facts, Evans, Seligmann,
and Finnerty (collectively the “Evans plaintiffs”),
Ryan McFadyen, Matthew Wilson, and Breck Archer
(collectively the “McFadyen plaintiffs”), and thirtyeight other members of the 2005-2006 Duke
University
lacrosse
team
(collectively
the
“Carrington plaintiffs”) filed three separate
complaints in the Middle District of North Carolina
alleging a myriad of claims against many
defendants, including the City of Durham and city
officials, particularly certain police officers.1
The individual police officers moved to dismiss
all claims against them. They asserted qualified
immunity from the federal claims and official
immunity from the state claims. The City and its
supervisory officials moved to dismiss the federal
claims pled against them, arguing that those claims
failed because the allegations against the officers
failed. The City moved for summary judgment on the
We note that one or more of the three complaints also
allege claims against the private laboratory, Duke University,
and Duke employees, among others. None of these defendants
asserted any immunity from suit, and thus none could file
appeals from the district court’s interlocutory rulings. All three
complaints additionally allege numerous claims against the
prosecutor, Michael Nifong. The district court held that Nifong
did not enjoy qualified immunity from the claims alleged
against him for his investigatory actions. Because Nifong did
not note an appeal of that ruling, it is not before us.
1
22a
state common-law claims, asserting governmental
immunity, and moved to dismiss the state
constitutional claims. The district court granted
these motions in part and denied them in part.
The police officers, supervisory officials, and
City appeal; no plaintiff cross-appeals. We have
consolidated the three cases on appeal. We address
first the federal and then the state claims asserted
in the three amended complaints.
II.
We have jurisdiction over the officers’
interlocutory appeals from the district court’s
judgment denying their motions to dismiss the
federal claims against them because the officers
assert qualified immunity. See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). “We review de novo the
denial of a motion to dismiss based on qualified
immunity, accepting as true the facts alleged in the
complaint and viewing them in the light most
favorable to the plaintiff.” Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 306 (4th
Cir. 2006).
Qualified immunity protects government
officials from suit for damages when their conduct
does not violate a “clearly established” constitutional
right. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). To escape dismissal of a complaint on
qualified immunity grounds, a plaintiff must (1)
allege a violation of a right (2) that is clearly
established at the time of the violation. See Pearson
23a
v. Callahan, 555 U.S. 223, 231 (2009). Although we
may address immunity without ruling on the
existence of a right, see id. at 236, if a plaintiff fails
to allege that an official has violated any right, the
official “is hardly in need of any immunity and the
analysis ends right then and there,” Abney v. Coe,
493 F.3d 412, 415 (4th Cir. 2007).
With these principles in mind, we turn to the
federal claims at issue here.
A.
The Evans plaintiffs allege a § 1983 malicious
prosecution claim against Officers Gottlieb and
Himan.2 The district court denied the officers’
motions to dismiss this claim, reasoning that the
2 Based on the same facts, the Evans plaintiffs also
allege a Fourteenth Amendment substantive due process claim
against Officers Gottlieb and Himan. The district court, noting
the “unsettled legal doctrines” surrounding due process claims
based on asserted pre-trial fabrication of evidence, nonetheless
denied the officers’ motions to dismiss this claim. In doing so,
the court erred. The Due Process Clause does not constitute a
catch-all provision that provides a remedy whenever a state
actor causes harm. See Cnty. of Sacramento v. Lewis, 523 U.S.
833, 848 (1998). Rather, “[w]here a particular Amendment
provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims.”
Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)
(internal quotation marks omitted); see also id. at 286-91
(Souter, J., concurring). Because the Fourth Amendment
provides “an explicit textual source” for § 1983 malicious
prosecution claims, the Fourteenth Amendment provides no
alternative basis for those claims.
24a
plaintiffs stated such a claim by alleging they “were
arrested pursuant to an indictment that was
obtained by the intentional or reckless creation of
false or misleading evidence used before the grand
jury that was necessary to a finding of probable
cause, or the deliberate or reckless omission of
material information that officials knew would
negate probable cause.” Evans v. City of Durham,
No. 1:07CV739, slip op. at 29-30 (M.D.N.C. Mar. 31,
2011).
A “malicious prosecution claim under § 1983 is
properly understood as a Fourth Amendment claim
for unreasonable seizure which incorporates certain
elements of the common law tort.” Lambert v.
Williams, 223 F.3d 257, 261 (4th Cir. 2000). To state
such a claim, a plaintiff must allege that the
defendant (1) caused (2) a seizure of the plaintiff
pursuant to legal process unsupported by probable
cause, and (3) criminal proceedings terminated in
plaintiff’s favor. See Durham v. Horner, 690 F.3d
183, 188 (4th Cir. 2012).
For purposes of this appeal, the officers do not
contend that the Evans plaintiffs have failed to
allege illegal seizures (i.e., the indictments) or that
criminal proceedings failed to terminate in the
plaintiffs’ favor (i.e., the dismissal of the
indictments). The officers do maintain, however, that
they escape liability for the assertedly illegal
seizures because they did not cause them. Rather,
they contend, an independent intervening act of
25a
another—i.e., Prosecutor Nifong’s decisions to seek
the indictments—caused the seizures.3
Of course, constitutional torts, like their
common law brethren, require a demonstration of
both but-for and proximate causation. See Murray v.
Earle, 405 F.3d 278, 289-90 (5th Cir. 2005); Townes
v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999).
Accordingly, subsequent acts of independent
decision-makers (e.g., prosecutors, grand juries, and
judges) may constitute intervening superseding
causes that break the causal chain between a
defendant-officer’s misconduct and a plaintiff’s
unlawful seizure. See Zahrey v. Coffey, 221 F.3d 342,
351 (2d Cir. 2000). Such “intervening acts of other
participants in the criminal justice system” insulate
a police officer from liability. Id.; see also Cuadra v.
Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir.
2010), cert. denied, 131 S. Ct. 2972 (2011); Wray v.
City of New York, 490 F.3d 189, 195 (2d Cir. 2007);
Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir.
1989); Smiddy v. Varney, 665 F.2d 261, 266-68 (9th
Cir. 1981), overruled on other grounds by Beck v. City
of Upland, 527 F.3d 853, 865 (9th Cir. 2008); Rhodes
v. Smithers, 939 F. Supp. 1256, 1274 (S.D. W. Va.
1995), aff’d, No. 95-2837, 1996 WL 420471 (4th Cir.
July 29, 1996) (unpublished).
In addition to contending that Nifong’s decisions to
seek the indictments constitute intervening acts shielding them
from liability, Officers Gottlieb and Himan contend that the
grand jury’s decisions to indict constitute similar intervening
acts. Given our holding as to Nifong, we need not and do not
reach this contention.
3
26a
However, even when, as here, a prosecutor
retains all discretion to seek an indictment,4 police
officers may be held to have caused the seizure and
remain liable to a wrongfully indicted defendant
under certain circumstances. In particular, officers
may be liable when they have lied to or misled the
prosecutor, see, e.g., Sykes v. Anderson, 625 F.3d 294,
317 (6th Cir. 2010); Jones v. City of Chicago, 856
F.2d 985, 993 (7th Cir. 1988); Borunda v. Richmond,
885 F.2d 1384, 1390 (9th Cir. 1988); failed to disclose
exculpatory evidence to the prosecutor, see, e.g.,
Dominguez v. Hendley, 545 F.3d 585, 590 (7th Cir.
2008); Sanders v. English, 950 F.2d 1152, 1159- 60
(5th Cir. 1992); or unduly pressured the prosecutor
to seek the indictment, cf. Beck, 527 F.3d at 870.
Stated differently, a police officer is not liable
for a plaintiff’s unlawful seizure following indictment
“in the absence of evidence that [the officer] misled
or pressured the prosecution.” Wray, 490 F.3d at
195; see also Snider v. Lee, 584 F.3d 193, 206 (4th
Cir. 2009) (Stamp, J., concurring) (“A law
enforcement officer who presents all relevant
probable cause evidence to a prosecutor . . . is
insulated from a malicious prosecution claim where
such intermediary makes an independent decision . .
. unless the officer [1] concealed or misrepresented
facts or [2] brought such undue pressure to bear on
the
intermediary
that
the
intermediary’s
independent judgment was overborne.”); Hand v.
Gary, 838 F.2d 1420, 1428 (5th Cir. 1988) (“An
In North Carolina, state district attorneys, like
Nifong, have the sole discretion to decide whether to prosecute.
See State v. Ward, 555 S.E.2d 251, 260 (N.C. 2001) (citing N.C.
Const. Art. IV § 18(1)).
4
27a
independent intermediary breaks the chain of
causation unless it can be shown that the
deliberations of that intermediary were in some way
tainted by the actions of the defendant.”).
The Evans plaintiffs do not allege that
Officers Gottlieb and Himan misled or misinformed
Nifong. Indeed, the Evans plaintiffs expressly allege
that, from the outset, the officers candidly briefed
Nifong as to the startling weaknesses in the case by
“detail[ing] the extraordinary evidence of innocence
and the fatal defects in Mangum’s claims” and
“convey[ing] to Nifong that Mangum was not
credible.” The Evans plaintiffs nonetheless insist
that the officers remain liable because they
“misrepresented, withheld, or falsified evidence” that
ultimately influenced the grand jury. This argument
fails because acts of either the prosecutor or the
grand jury may break the causal chain. Cf. Cuadra,
626 F.3d at 813; Barts, 865 F.2d at 1195. In other
words, if the independent act of a prosecutor breaks
the causal chain, the fact that the prosecutor misled
the grand jury does not render police officers liable.
Alternatively, the Evans plaintiffs maintain
that Officers Gottlieb and Himan conspired with
Nifong to fabricate and conceal evidence from the
grand jury and thus somehow unduly pressured
Nifong to seek the indictment. The allegations in
their
complaint
significantly
undercut
this
argument. For the Evans plaintiffs ground their
entire case on allegations that Nifong desired to
exploit the “high-profile, racially charged rape
allegation for his personal political gain.” They
further allege that from his very first meeting with
28a
the officers, Nifong noted the lack of exculpatory
evidence: “we’re f*cked.” Tellingly, the Evans
plaintiffs do not assert that Officers Gottlieb and
Himan responded by pressuring Nifong to pursue
the case. Rather, they allege that the officers
continued the investigation at Nifong’s instruction,
and that, when Nifong sought to indict the Evans
plaintiffs, Officer Himan frankly responded, “With
what?” No matter how generously read, these
allegations do not allege that Officers Gottlieb and
Himan pressured Nifong to seek an indictment.
Moreover, it seems contrary to the very
purpose of qualified immunity to extend personal
liability to police officers who have assertedly
conspired with, but neither misled nor unduly
pressured, an independent prosecutor. Police officers
and prosecutors often work together to establish
probable cause and seek indictments; such
collaboration could always be characterized as a
“conspiracy.” Allowing § 1983 claims against police
officers to proceed on allegations of such a
“conspiracy” would in virtually every case render the
officers’ qualified immunity from suit “effectively
lost,” Mitchell, 472 U.S. at 526, and make discovery
the rule, rather than the exception, see Anderson v.
Creighton, 483 U.S. 635, 639-40 & n.2 (1987).
Thus, we hold today that an alleged officerprosecutor conspiracy does not alter the rule that a
prosecutor’s independent decision to seek an
indictment breaks the causal chain unless the officer
has misled or unduly pressured the prosecutor.5
Twelve years ago, the Second Circuit questioned in
dicta why “reasonable foreseeability” would not suffice to
5
29a
Because the Evans plaintiffs do not allege that
Officers Gottlieb and Himan either misled or
pressured Nifong to seek their indictments, we
reverse the district court’s denial of the officers’
motions to dismiss the Evans plaintiffs’ § 1983
malicious prosecution claims against them.
B.
Both the McFadyen and Carrington plaintiffs
allege § 1983 claims against Officers Gottlieb and
Himan based on the officers’ asserted unlawful
seizures of evidence pursuant to a state nontestimonial order (“NTO”). Plaintiffs acknowledge
that in seizing physical evidence from them, the
officers acted pursuant to a state NTO, but claim
that those seizures nonetheless violate the Fourth
Amendment because the NTO flowed from the
officers’ assertedly dishonest supporting affidavits.
The district court agreed and so denied the officers’
motions to dismiss these claims.
The North Carolina NTO statute requires
“probable cause to believe that a felony offense . . .
has been committed;” “reasonable grounds to suspect
that the person named or described in the affidavit
committed the offense;” and “[t]hat the results of
specific nontestimonial identification procedures will
preserve the causal chain between a police officer’s actions and
an unlawful seizure by way of indictment. See Zahrey, 221 F.3d
at 351-52. However, no other court has pursued this suggestion
and more recently the Second Circuit itself has stepped back
from that broad dicta. See Wray, 490 F.3d at 195. As explained
in text above, we believe good reasons counsel against following
the approach suggested in the Zahrey dicta.
30a
be of material aid in determining whether the person
named in the affidavit committed the offense.” N.C.
Gen. Stat. § 15A-273(1)-(3).6
Franks v. Delaware, 438 U.S. 154 (1978),
guides our analysis as to whether asserted material
false statements and omissions in the NTO
supporting affidavits offered by Officers Gottlieb and
Himan state a constitutional claim. See also Miller v.
Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir.
6 Plaintiffs also challenge the constitutionality of the
North Carolina NTO statute, contending that it authorizes
searches and seizures of blood and DNA without probable
cause. The district court correctly noted the uncertainty as to
whether North Carolina courts would interpret the state NTO
statute “as authorizing a search and seizure . . . on less than a
full showing of probable cause” and whether “such an
interpretation would render the state NTO statutes
unconstitutional.” McFadyen v. Duke Univ., 786 F. Supp. 2d
887, 925 (M.D.N.C. 2011); see also State v. Grooms, 540 S.E.2d
713, 728 (N.C. 2000). Nonetheless, the district court refused to
hold that the officers’ qualified immunity barred this claim.
Given this uncertainty, we cannot conclude that clearly
established law mandated “a full showing of probable cause” or
that the state NTO statute would be held unconstitutional
without such a showing. Accordingly, we must reverse the
district court’s refusal to dismiss this constitutional challenge
to the state NTO statute on qualified immunity grounds.
However, it is clear that seizures pursuant to the NTO statute
are “no less subject to the constraints of the Fourth
Amendment,” and that the Constitution requires some
evidentiary showing, even if not “probable cause in the
traditional sense,” for the collection of DNA evidence pursuant
to an NTO. See Davis v. Mississippi, 394 U.S. 721, 727 (1969);
see also Hayes v. Florida, 470 U.S. 811, 816-17 (1985). On its
face, the state NTO statute requires such an evidentiary
showing. See N.C. Gen. Stat. § 15A-273(1)-(3). We address in
text plaintiffs’ arguments that NTO affidavits failed to provide
the evidentiary showing required in the NTO statute.
31a
2007) (extending Franks to § 1983 claims). Franks
provides a two-prong test. First, plaintiffs must
allege that 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. See Franks, 438 U.S. at 15556; Miller, 475 F.3d at 627. Second, plaintiffs must
demonstrate that those “false statements or
omissions [are] ‘material,’ that is, ‘necessary to’” a
neutral and disinterested magistrate’s authorization
of the search. Miller, 475 F.3d at 628 (quoting
Franks, 438 U.S. at 155-56). We take up each prong
in turn.
1.
a.
In their complaints, both the McFadyen and
Carrington plaintiffs allege that Officers Gottlieb
and Himan deliberately falsified their NTO
affidavits by wrongly declaring that: (1) Mangum
had claimed she lost painted fingernails in a struggle
with her attackers, and police recovered fingernails
during their search of the house where the party
(and alleged rape) occurred; (2) the lacrosse team
members used aliases before and during the party to
conceal their identities from Mangum and Pittman;
and (3) the team members attempted to conceal their
university and team affiliations from Mangum and
Pittman during the party. In addition, the McFadyen
plaintiffs maintain that the officers deliberately
falsified the affidavits by declaring that at one point
32a
during the party a male attendee, holding a
broomstick in the air, told Mangum and Pittman
“I’m going to shove this up you.” No record evidence
lends any support for these four statements;
accordingly, they clearly satisfy the first Franks
prong as deliberate falsehoods.
We note that on appeal, plaintiffs vigorously
contend that the officers’ reliance in the NTO
affidavits
on
Nurse
Levicy’s
corroborating
statements constitutes another deliberately false
statement under Franks. But the plaintiffs’ amended
complaints belie this contention.
The McFadyen complaint does not even
mention the nurse’s statements when detailing the
false statements in the NTO affidavits. While the
Carrington complaint does allege that the portions of
the affidavits based on the nurse’s statements were
false, it does not allege that the officers knew of the
falsity when applying for the NTO, or acted with
reckless disregard for the truth in relying on the
nurse’s statements. Of course, the truthfulness of a
witness statement is irrelevant as to whether
affiants’ statements were truthful. See Franks, 438
U.S. at 171. And that the officers may have learned
of the falsehood of the nurse’s statements after the
NTO issued does not defeat their reliance on the
information when applying for the NTO. See Unus v.
Kane, 565 F.3d 103, 125 (4th Cir. 2009). Moreover,
although the Carrington plaintiffs allege that at
some point Nurse Levicy and Officers Gottlieb and
Himan conspired to prolong the investigation, they
do not allege when that conspiracy began. Indeed
33a
their complaint suggests that the officers initially
believed Nurse Levicy’s statements.
For these reasons, we cannot agree that the
officers’ reliance on the nurse’s corroborating
statements constituted a deliberate falsehood under
Franks. Rather, only the four misstatements
actually pled in the McFadyen plaintiffs’ complaint
(three of which are also pled in the Carrington
plaintiffs’ complaint) satisfy the first Franks prong.7
b.
In addition, the McFadyen plaintiffs allege
that Officers Gottlieb and Himan’s omission from the
NTO affidavits of the fact that in the first photo
array Mangum “ruled out as plausible suspects”
several team members also satisfies the first Franks
prong. We disagree. Affiants are not required to
include every piece of exculpatory information in
affidavits. See, e.g., Simmons v. Poe, 47 F.3d 1370,
1384 (4th Cir. 1995) (finding affiant’s omission of
facts inconsistent with a suspect’s guilt from an
On appeal, plaintiffs insist that we look to their
complaints as a whole to determine whether Officers Gottlieb
and Himan alleged numerous other assertedly false statements
in the NTO affidavits. We reject plaintiffs’ suggestion that
defendants—and courts—should scour several-hundred page
complaints to discover which affidavit statements plaintiffs
allege are fabricated or misleading. A complaint must specify
the facts plaintiffs allege defendants falsified or omitted.
Contrary to plaintiffs’ arguments, general allegations that
“every material fact” in the affidavits was fabricated do not
suffice. See Franks, 438 U.S. at 171 (“[Plaintiffs] should point
out specifically the portion of the warrant affidavit that is
claimed to be false.”).
7
34a
affidavit “was not an attempt to mislead the
magistrate” under Franks); United States v. Colkley,
899 F.2d 297, 299-301 (4th Cir. 1990) (holding
affiant’s omission of the fact that six eyewitnesses
failed to identify a criminal suspect in a photo array
did not satisfy the first Franks prong absent
evidence that the affiant possessed “the requisite
intent to mislead”). As in Simmons and Colkley,
nothing in the omission alleged by the McFadyen
plaintiffs plausibly suggests an intent to deceive or
recklessness, and thus the asserted omission does
not satisfy the first Franks prong.
2.
Because the plaintiffs have sufficiently pled
that Officers Gottlieb and Himan deliberately made
four false statements in the NTO supporting
affidavits, we proceed to Franks’ materiality prong.
To state a Franks claim, false statements must be
“material, that is, necessary to the neutral and
disinterested magistrate’s” authorization of the
search. Miller, 475 F.3d at 628 (internal quotation
marks omitted); see also Franks, 438 U.S. at 171;
Colkley, 899 F.2d at 301. To determine materiality,
we “excise the offending inaccuracies . . . and then
determine whether or not the corrected warrant
affidavit would” provide adequate grounds for the
search. Miller, 475 F.3d at 628 (internal quotation
marks omitted).
In correcting the supporting affidavits, we
remove the false statements regarding the
broomstick, Mangum’s fingernails, and the
35a
suggestions that team members attempted to hide
their identities, school, and team affiliations. Even
so, the corrected affidavits clearly contain 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.
As corrected, the affidavits: (1) describe
Mangum’s allegation that, after dancing at the
party, three white males “forcefully held her legs and
arms and raped and sexually assaulted her anally,
vaginally, and orally;” (2) include the fact that police
found some of Mangum’s belongings during their
search of the house where the alleged rape was
committed; and (3) contain Nurse Levicy’s
corroborating statement that “the victim had signs,
symptoms, and injuries consistent with being raped
and sexually assaulted vaginally and anally.” A rape
allegation, paired with corroborating medical
evidence, undoubtedly establishes probable cause
that a rape was committed. Cf. Torchinsky v.
Siwinski, 942 F.2d 257, 262 (4th Cir. 1991).
The corrected affidavits also state “reasonable
grounds” for belief that the named persons
committed the rape. The corrected affidavits state
Mangum’s allegations of gang-rape by three white
men at the party; that the team captains had
identified all but five of the white team members
named in the NTO as being present at the party;
that “no strangers . . . showed up to the event”; and
that—because there were so many attendees—all
white members of the lacrosse team were listed
under the NTO because “they were all aware of the
36a
party and could have been present.” These facts
might not demonstrate probable cause, but certainly
meet the NTO “reasonable grounds” standard. For
these facts state more than an “unparticularized
suspicion” that the parties named in the NTO may
have raped Mangum. See State v. Pearson, 566
S.E.2d 50, 54 (N.C. 2002) (stating that “reasonable
grounds” requires only “a minimal amount of
objective justification, something more than an
‘unparticularized suspicion or hunch,’” and is a
“significantly lower” standard than probable cause).
Because the corrected NTO affidavits would
provide adequate support for a magistrate’s
authorization of the NTO, we cannot say that the
false statements identified above were “material.”
Therefore, we reverse the district court’s denial of
defendants’ motions to dismiss these § 1983
unlawful seizure claims.
C.
Plaintiff Ryan McFadyen individually alleges
a § 1983 claim against Officers Gottlieb and Himan
for the assertedly unlawful search and seizure of his
apartment and car pursuant to a search warrant.8
McFadyen alleges that the officers made material
false statements and omissions in the search
warrant application. The district court denied the
officers’ motions to dismiss this claim, relying on its
reasoning with respect to the NTO claims. Because
To the extent that McFadyen’s co-plaintiffs, Matthew
Wilson and Breck Archer, also attempt to bring this claim, we
hold that they lack standing to do so. See United States v. Gray,
491 F.3d 138, 144 (4th Cir. 2007).
8
37a
McFadyen alleges that Officers Gottlieb and Himan
made false statements or omissions material to the
issuance of the search warrant, we again analyze the
claim under Franks.
1.
The affidavit supporting the search warrant
mirrors those supporting the NTO with the following
two additions. First, the officers added that during
the party “[t]he players . . . used numbers when
calling for one and another across the room[,] again
to hide their identities.” Second, the officers added
the contents of the email McFadyen sent to his
teammates and the assertion by Officer Gottlieb that
he received the email from a confidential source.
McFadyen contends that both of these statements,
like the four statements discussed above in the NTO
affidavits, constitute knowing false statements
under the first Franks prong. We agree with respect
to the first statement, as the record lends it no
support.
But we disagree as to the second statement,
which contains the email. McFadyen argues that,
because the affidavit indicates that the email was
provided by a “confidential source,” but does not
articulate any facts relating to the reliability of the
source, we must strike the email from the affidavit
before addressing Franks’ materiality prong.
Assuming, without deciding, that this would be the
appropriate manner to handle such admittedly
truthful, yet perhaps inadequately verified,
38a
information under Franks, we nonetheless find
McFadyen’s argument meritless.
Florida v. J.L., 529 U.S. 266 (2000), on which
McFadyen heavily relies, in fact provides him little
support. J.L. holds that police officers must offer
evidence other than an anonymous tip to support a
Terry stop-and-frisk. Id. at 268. In this case, the
email itself supplies evidence in addition to the
anonymous tip. For the email sent from McFadyen’s
Duke email account and signed with his jersey
number contains sufficient indicia of reliability to
support its inclusion in the search warrant
application. See United States v. Perkins, 363 F.3d
317, 325 (4th Cir. 2004) (“The central point in those
[anonymous tip] cases is that courts must ensure,
one way or the other, that an anonymous informant’s
tip was sufficiently reliable.”). Accordingly, we do not
strike McFadyen’s email from the warrant affidavit.
2.
Because McFadyen sufficiently pled that
Officers Gottlieb and Himan made five false
statements in the search warrant affidavit (four
from the NTO affidavits and the additional
statement as to the players’ use of jersey numbers to
hide their identities), we proceed to Franks’
materiality prong to “determine whether or not the
‘corrected’ warrant affidavit would establish
probable cause.” Miller, 475 F.3d at 628 (internal
quotation marks omitted).
39a
“Probable cause exists when there is a fair
probability that . . . evidence of a crime will be found
in a particular place.” United States v. Grubbs, 547
U.S. 90, 95 (2006) (internal quotation marks
omitted). We conclude that the corrected affidavit
establishes probable cause to search McFadyen’s
dorm room.9
As corrected, the affidavit still contains
significant evidence that a rape was committed, most
notably Mangum’s allegations and Nurse Levicy’s
corroborating statement that “the victim had signs,
symptoms, and injuries consistent with being raped
and sexually assaulted vaginally and anally.”
Further, the affidavit contains McFadyen’s email,
which specifically identified his apartment as the
location of a planned murder of exotic dancers.
Even crediting McFadyen’s allegation that his
email spoofed the novel and film, American Psycho, a
reasonable officer could have—and given the
circumstances here, should have—taken seriously
the email’s disturbing contents. McFadyen’s email,
sent only hours after the alleged rape of an exotic
dancer, specifically contemplated other brutally
violent behavior toward exotic dancers. The email’s
temporal proximity and substantive similarity to the
rape allegations provide more than a fair probability
The search warrant also authorized the search of
McFadyen’s car. On appeal, McFadyen maintains that a search
of his car violated the Constitution. This argument fails
because in his complaint McFadyen never alleges that police
actually searched his car.
9
40a
that evidence relating to the rape would be found in
McFadyen’s apartment.10
McFadyen’s argument that the affidavit fails
to establish a nexus between his apartment and the
asserted crimes also fails. That none of the crimes
stemming from Mangum’s allegations were alleged
to have occurred in McFadyen’s apartment is
irrelevant. Instead, the probable cause inquiry
focuses on whether the affidavit demonstrates a “fair
probability” that evidence relating to the crimes
alleged would be found in McFadyen’s apartment.
See Unus, 565 F.3d at 125 n.25; see also Grubbs, 547
U.S. at 95. Based on the content of McFadyen’s
email, there is no question that the corrected
affidavit meets this standard.
Because the corrected affidavit would provide
adequate support for a magistrate’s finding of
probable cause, we cannot say that the false
statements in the affidavit were “material” under
the second Franks prong. Therefore, we reverse the
district court’s denial of defendants’ motions to
dismiss McFadyen’s individual § 1983 unlawful
search and seizure claim.
D.
sets
Based on the above § 1983 claims, all three
of plaintiffs allege derivative claims of
McFadyen contends that the fact that the search
warrant was executed nearly two weeks after he sent the email
renders its information stale. While this may be true for the
“conspiracy to commit murder” crime, the email certainly
provided non-stale probable cause for the other crimes listed in
the warrant application—sexual assault and kidnapping.
10
41a
supervisory liability against City supervisory
officials and of liability under Monell v. Department
of Social Services, 436 U.S. 658 (1978), against the
City itself.11 Further, plaintiffs allege “stigma-plus”
due process claims under Paul v. Davis, 424 U.S. 693
(1976), against various officials who had made public
statements about the investigation. The district
court denied the City and its officials’ motions to
dismiss these claims.
All of these claims require a predicate
constitutional violation to proceed. For “supervisors
and municipalities cannot be liable under § 1983
without some predicate ‘constitutional injury at the
hands of the individual [state] officer,’ at least in
suits for damages.” Waybright v. Frederick Cnty.,
528 F.3d 199, 203 (4th Cir. 2008) (quoting City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986)).
Similarly, a plaintiff bringing a “stigma-plus” claim
under Paul must allege both a stigmatic statement
and a “state action that ‘distinctly altered or
extinguished’” his legal status. Shirvinski v. U.S.
Coast Guard, 673 F.3d 308, 315 (4th Cir. 2012)
(quoting Paul, 424 U.S. at 711). Because we hold
that all plaintiffs failed to state predicate § 1983
claims against the individual officers, we must also
11 We recognize that because cities do not possess
qualified immunity from § 1983 claims, Owen v. City of
Independence, 445 U.S. 622, 638 (1980), we do not have
appellate jurisdiction under the collateral order doctrine to
hear the City’s appeal of the Monell claims. However, because
our determinations of the individual officers’ qualified
immunities fully resolve the issue of the City’s Monell liability,
we exercise pendent appellate jurisdiction over these claims.
See Altman v. City of High Point, 330 F.3d 194, 207 n.10 (4th
Cir. 2003).
42a
hold that all plaintiffs have failed to state
supervisory liability, Monell liability, and “stigmaplus” claims.12 Thus, we reverse the district court’s
denial of the defendants’ motions to dismiss these
derivative claims.
III.
Having resolved the City and officials’ appeals
of the district court’s denial of their motions to
dismiss the federal claims asserted against them, we
turn to their appeals of the district court’s denial of
their motions for summary judgment or to dismiss
the state law claims. Federal jurisdiction over the
Evans and Carrington state law claims rests on
diversity of citizenship. Although the McFadyen
plaintiffs only pled federal question jurisdiction, a
federal court has pendent jurisdiction over their
state law claims. 28 U.S.C. § 1367. Similarly, we
have appellate jurisdiction under the collateral order
doctrine to review a district court’s denial of those
claims to which the defendants assert immunities
“from suit.” Gray- Hopkins v. Prince George’s Cnty.,
309 F.3d 224, 231 (4th Cir. 2002); see also Moore v.
Evans, 476 S.E.2d 415, 420 (N.C. Ct. App. 1996).
A.
All three sets of plaintiffs allege state
common-law tort claims against the City. The City
The parties dispute whether a Fourth Amendment
violation constitutes a cognizable “plus” under Paul. Given that
we hold that plaintiffs failed to state Fourth Amendment
claims, we need not and do not reach this question.
12
43a
moved for summary judgment as to these claims on
the ground of governmental immunity from suit. The
district court denied the motion.
Clearly, North Carolina municipalities enjoy
governmental immunity from state common-law tort
claims arising out of their performance of
governmental, as opposed to proprietary, functions.
Patrick v. Wake Cnty. Dep’t of Human Servs., 655
S.E.2d 920, 923 (N.C. Ct. App. 2008). Just as clearly,
the provision of police services constitutes a
governmental function protected by governmental
immunity. Arrington v. Martinez, 716 S.E.2d 410,
414 (N.C. Ct. App. 2011).
All plaintiffs maintain, however, that the City
has waived its governmental immunity by
purchasing liability insurance pursuant to N.C. Gen.
Stat. § 160A-485(a). Well-established North Carolina
law holds that courts may not lightly infer a waiver
of immunity. Guthrie v. N.C. State Ports Auth., 299
S.E.2d 618, 627 (N.C. 1983). Indeed, “[i]mmunity is
waived only to the extent that the city or town is
indemnified by the insurance contract from liability
for the acts alleged.” Combs v. Town of Belhaven,
415 S.E.2d 91, 92 (N.C. Ct. App. 1992).
All plaintiffs argue that a genuine dispute of
material fact exists as to whether the City waived its
governmental immunity by purchasing liability
insurance.13
Plaintiffs briefly argue the City’s conflicting
statements regarding its insurance coverage, along with its
arbitration with one of its insurers over the policy coverage,
bars the grant of summary judgment. However, because “[t]he
13
44a
Plaintiffs first contend that the City’s
purchase of two liability insurance policies from the
Insurance Company of the State of Pennsylvania
(“ICOP”) waived its governmental immunity. But a
“governmental immunity endorsement” present in
both ICOP policies establishes that the City did not
waive its governmental immunity. The endorsement
states:
[T]his policy provides coverage only for
occurrences or wrongful acts for which
the defense of governmental immunity
is clearly not applicable or for which,
after the defenses is [sic] asserted, a
court
of
competent
jurisdiction
determines the defense of governmental
immunity not to be applicable.
The endorsement is clear and none of the
plaintiffs’ arguments undermine its clarity. Indeed,
the endorsement is materially indistinguishable
from similar provisions that North Carolina courts
have held do preserve governmental immunity. See
Owen v. Haywood Cnty., 697 S.E.2d 357, 359-60
(N.C. Ct. App.), review denied, 705 S.E.2d 361 (N.C.
2010); Estate of Earley ex rel. Earley v. Haywood
Cnty. Dep’t of Soc. Servs., 694 S.E.2d 405, 409 (N.C.
Ct. App. 2010); Patrick, 655 S.E.2d at 923-24. Thus,
meaning of language used in an insurance contract is a
question of law for the Court,” Daniel v. City of Morganton, 479
S.E.2d 263, 267 (N.C. Ct. App. 1997), the City’s opinions and
the existence and outcome of the arbitration proceedings are
irrelevant to the purely legal question of whether the City
waived its governmental immunity by purchasing liability
insurance.
45a
we must hold that the City did not waive its
governmental immunity through the ICOP policies.
Nor do the plaintiffs’ contentions that the City
waived its governmental immunity by purchasing an
insurance policy from Everest Insurance Company
fare any better. For none of the plaintiffs’ claims
implicate the policy period covered by the Everest
policy. That policy explicitly provides coverage for
“occurrences” or “wrongful acts” for the policy period
of April 1, 2007 to April 1, 2008. Plaintiffs do not
allege any “occurrences” or “wrongful acts” during
the Everest policy’s temporal scope. 14 Accordingly,
the Everest policy does not apply to their claims and
cannot function as a waiver of governmental
immunity. See Patrick, 665 S.E.2d at 923.
Finally, the McFadyen plaintiffs argue that
the City waived its governmental immunity by
participating in a local government risk pool or
creating a funded reserve under N.C. Gen. Stat.
§ 160A-485(a). Neither argument is persuasive. The
asserted local government risk pool that the
McFadyen plaintiffs identify is actually a contract
for the provision of liability claims adjusting
services, not a contract for the provision of liability
coverage itself. Further, because the City repealed
its funded reserve on June 18, 2007, the funded
Although the Evans and McFadyen plaintiffs allege
an ongoing conspiracy among several defendants until April 11,
2007, the last specific “occurrence” or “wrongful act” they allege
occurred in December 2006. A plaintiff cannot defeat
governmental immunity by alleging an ongoing conspiracy
without any specific factual pleadings of a covered action
during the policy period.
14
46a
reserve does not waive the City’s governmental
immunity in these cases.15
In short, no genuine dispute as to any
material fact exists as to whether the City waived its
governmental immunity from state common-law tort
claims; it clearly did not. Accordingly, we reverse the
district court’s denial of the City’s motion for
summary judgment as to these claims.
B.
The plaintiffs also allege state common-law
tort claims against various Durham police officers, to
which the officers asserted official immunity. In
North Carolina, official immunity protects public
officials performing discretionary acts under color of
authority from suit in their individual capacity. See
Moore, 476 S.E.2d at 421. Plaintiffs may avoid
dismissal of such claims on official immunity
grounds simply by pleading that an official’s tortious
15 Of course, all plaintiffs’ tort claims against the City
rest on conduct that occurred before the City repealed its
funded reserve. However, when creating the funded reserve in
2004, “[t]he City reserve[d] the right to modify or terminate
th[e] policy at any time, and to have any such modification or
termination apply to any claim not paid or for which there has
not yet been a final decision of a court of competent
jurisdiction.” Because the City repealed its funded reserve
policy before a final decision in any of these cases—indeed,
before plaintiffs even filed their original complaints—the City
has not waived its governmental immunity as to these claims
through its prior funded reserve. Moreover, because the City
has not waived its governmental immunity, we need not reach
the issue of whether the public duty doctrine immunizes the
City from plaintiffs’ negligence-based tort claims.
47a
actions were “malicious, corrupt or outside the scope
of [his] official duties.” Id. Notwithstanding the
officers’ vigorous appellate arguments to the
contrary, as the district court explained, the
plaintiffs sufficiently pled malicious conduct by the
officers.16 Thus, we need only consider whether the
alleged conduct fails as a matter of law to constitute
a tortious act under North Carolina law.
1.
The Evans plaintiffs allege that Officers
Addison, Gottlieb, and Himan engaged in the tort of
malicious prosecution by concealing material
evidence, manufacturing false evidence, and
intimidating witnesses. The district court denied the
officers’ motion to dismiss this claim on official
immunity grounds, finding the plaintiffs properly
pled the elements of a state malicious prosecution
claim—causation of a criminal proceeding, without
probable cause and with malice, which terminates in
16 The partial dissent contends that there is an “obvious
alternative explanation” for the officers’ allegedly malicious
acts. See Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009) (internal
quotation marks omitted). Maybe so if each act were viewed in
isolation. But, in applying Iqbal, we are to “draw on [our]
judicial experience and common sense” to determine whether
plaintiffs’ well-pleaded, non-conclusory allegations collectively
nudge the issue of malice “across the line from conceivable to
plausible.” Id. at 679-80. As outlined in the dissent itself,
plaintiffs allege many wrongful acts by the officers. Taken
together, the officers’ multiple alleged acts certainly present
plausible claims of malice. Of course, plaintiffs ultimately bear
the burden of proving these allegations, and the district court
may determine prior to trial that they have failed to offer
evidence of a triable issue of fact as to the officers’ allegedly
malicious conduct.
48a
the plaintiff’s favor. See Williams v. Kuppenheimer
Mfg. Co., 412 S.E.2d 897, 899 (N.C. Ct. App. 1992).
On appeal, the officers urge us to hold—as we do in
the § 1983 context—that Prosecutor Nifong’s
decision to seek indictments against the Evans
plaintiffs broke the causal chain between their acts
and the indictments.
Certainly, no North Carolina court has
adopted the attenuated view of causation espoused
by the plaintiffs; but North Carolina courts have
generally held causation can be established by
allegations that the defendant “instituted, procured,
or participated in” a criminal proceeding. See Moore
v. City of Creedmoor, 460 S.E.2d 899, 906 (N.C. Ct.
App. 1995), aff’d in part, rev’d in part on other
grounds, 481 S.E.2d 14 (N.C. 1997); see also Becker
v. Pierce, 608 S.E.2d 825, 829 (N.C. Ct. App. 2005).
Given this language, we cannot hold that the district
court erred in finding that the Evans plaintiffs pled
a state-law malicious prosecution claim as to Officers
Gottlieb and Himan. However, plaintiffs fail to
allege any conduct by Officer Addison that plausibly
could be construed as “institut[ing], procur[ing], or
participat[ing]”
in
a
criminal
proceeding.
Accordingly, we must affirm the court’s denial of
Officers Gottlieb and Himan’s motions to dismiss
this claim, and reverse the court’s denial of Officer
Addison’s motion to dismiss this claim.
2.
All three sets of plaintiffs allege state
common-law obstruction of justice claims against
49a
Officers Gottlieb and Himan, based on the officers’
asserted fabrication and concealment of evidence
and witness tampering. The McFadyen plaintiffs
also allege a state common-law obstruction of justice
claim against the officers’ supervisor, Commander
Jeff Lamb, based on his asserted concealment of
evidence and witness tampering.
All three officers argue that, in North
Carolina, criminal suspects (like the plaintiffs)
cannot allege a common-law obstruction of justice
claim against police officers based on how the
officers conducted a criminal investigation. Although
logic would seem to compel this conclusion, the
district court denied the defendants’ motions to
dismiss, explaining it could not “rule out the
possibility that a claim could exist for common law
obstruction of justice for creation of false evidence or
destruction of evidence for the purpose of impeding
the justice system, even if the conduct occurred as
part of a criminal investigation.” McFadyen v. Duke
Univ., 786 F. Supp. 2d 887, 975 (M.D.N.C. 2011). We
cannot affirm. Even though North Carolina courts
have interpreted common-law obstruction of justice
to include fabrication of evidence, Henry v. Deen, 310
S.E.2d 326, 334 (N.C. 1984), and destruction of
evidence, Grant v. High Point Reg’l Health Sys., 645
S.E.2d 851, 855 (N.C. Ct. App. 2007), we have not
found—and plaintiffs have not offered—any case
from any jurisdiction recognizing a common-law
obstruction of justice claim against a police officer for
his actions relating to a criminal proceeding.
Thus, in forecasting whether North Carolina
would recognize such an action, see Wilson v. Ford
50a
Motor Co., 656 F.2d 960, 960 (4th Cir. 1981), we
must conclude that although such a holding may be
a remote “possibility,” it is not a reality. Accordingly,
we reverse the district court’s denial of the officers’
motions to dismiss this claim.
C.
Finally, the City asks us to exercise pendent
appellate jurisdiction over the district court’s denial
of the City’s motions to dismiss all three sets of
plaintiffs’ state constitutional claims.
Because governmental immunity does not
shield North Carolina municipalities from claims
alleged under the state constitution, Craig ex rel.
Craig v. New Hanover Cnty. Bd. Of Educ., 678
S.E.2d 351, 354 (N.C. 2009), the district court’s
denial of the City’s motion to dismiss is a non-final
order, not appealable under the collateral order
doctrine. Nonetheless, the City urges us to exercise
pendent appellate jurisdiction over these claims
because, it argues, the issue of governmental
immunity is relevant to the existence of a state
constitutional claim, and because the state
constitutional standards are the same as those
applicable to plaintiffs’ § 1983 claims.
As we have previously noted, “[p]endent
appellate jurisdiction is an exception of limited and
narrow application driven by considerations of need,
rather than of efficiency.” Rux v. Republic of Sudan,
461 F.3d 461, 475 (4th Cir. 2006). Our exercise of
pendent appellate jurisdiction “is proper only when
51a
an issue is (1) inextricably intertwined with the
decision of the lower court to deny qualified
immunity or (2) consideration of the additional issue
is necessary to ensure meaningful review of the
qualified immunity question.” Bellotte v. Edwards,
629 F.3d 415, 427 (4th Cir. 2011) (internal quotation
marks omitted). In this case, neither rationale is
present. Our review of the issues of qualified,
official, and governmental immunity in these
appeals did not require any evaluation of the state
constitutional
claims.
Indeed,
the
state
constitutional claims, although “sharing certain
wholesale commonalities” with the immunity issues,
“nevertheless present quite distinct factual and legal
issues at the retail level”— in particular, what
constitutes an “adequate remedy at state law” under
Craig. Id.
We therefore decline to exercise pendent
appellate jurisdiction over the state constitutional
claims. Instead, we dismiss for lack of jurisdiction
the City’s appeal of the district court’s denial of the
City’s motions to dismiss these claims.
IV.
To recapitulate, we hold as follows. We
reverse the district court’s denial of all defendants’
motions to dismiss the federal claims alleged against
them. We reverse the court’s denial of the City’s
motion for summary judgment as to the state
common-law claims alleged against it. We affirm the
court’s denial of Officers Gottlieb and Himan’s
motions to dismiss the state common-law malicious
prosecution claims alleged against them. We reverse
52a
the court’s denial of the officers’ motions to dismiss
all other state common-law claims. We dismiss for
lack of appellate jurisdiction the City’s appeal of the
state constitutional claims alleged against it.
Finally, we remand the cases for further proceedings
consistent with this opinion.
AFFIRMED IN PART,
DISMISSED IN PART,
REVERSED IN PART,
AND REMANDED
WILKINSON, Circuit Judge, concurring:
I concur fully in Judge Motz’s fine opinion. It
demonstrates well the central flaws in the plaintiffs’
contentions.
A few additional observations may underscore
the overblown nature of this case. Plaintiffs have
sought to raise every experimental claim and to
corral every conceivable defendant. The result is a
case on the far limbs of law and one destined, were it
to succeed in whole, to spread damage in all
directions.
I.
Although I appreciate the able and wellintentioned efforts of the attorneys in this matter,
there is something disquieting about the sweeping
scope and number of claims brought by the various
plaintiff groups (twenty-three counts in the Evans
complaint, thirty-two in Carrington, and forty in
McFadyen), as well as the glacial pace at which this
53a
litigation has proceeded (we are now nearly six years
removed from the dismissal of the last charges
against the three Duke lacrosse players). With all of
these overwrought claims disputed over years of
complex litigation, this matter has taken on an
unfortunate life of its own. A few examples of the
pitfalls in plaintiffs’ most inventive claims illustrate
my concerns with allowing them to proceed.
A.
To take one example, the complaints lodge a
Fourteenth Amendment “due process stigma-plus”
claim against Corporal David Addison, the Durham
Police spokesman. In seeking to hold Addison liable
for allegedly defamatory statements, the complaints
fly in the face of the Supreme Court’s admonition
that the Due Process Clause is not to be converted
into “a font of tort law to be superimposed upon
whatever systems may already be administered by
the states.” Paul v. Davis, 424 U.S. 693, 701 (1976).
Yet plaintiffs seek that result and then some,
attempting to hold a police spokesman liable for
general statements that reference no individual and
are therefore not even actionable under traditional
defamation law. See Restatement (Second) of Torts §
564A (1977) (“One who publishes defamatory matter
concerning a group or class of persons is subject to
liability to an individual member of it if, but only if,
(a) the group or class is so small that the matter can
reasonably be understood to refer to the member, or
(b) the circumstances of publication reasonably give
rise to the conclusion that there is particular
reference to the member.”).
54a
Moreover, the plaintiffs’ position would expose
spokespersons (who are often given limited
information by their superiors on a need-to-know
basis) to the threat of monetary damages for
expressing a departmental position in the most
general of terms. Think of the implications of such a
rule for public spokespersons of all sorts, from the
press secretary for the Department of State to the
spokesperson for a local school board. The threat
posed by litigation of this kind would cause such
officials to clam up, and the criminal justice
system—not to mention government generally—
would become less transparent than it already is.
The plaintiffs’ “stigma-plus” claim against
Addison suffers from another shortcoming. Even if
Addison’s general statements could somehow be
considered defamatory with respect to the various
individual plaintiffs, the complaints fail to plausibly
allege that any of his statements caused the
indictments of Evans, Finnerty, and Seligmann,
much less the issuance of the NTO or McFadyen
search warrant. See Johnson v. Morris, 903 F.2d
996, 999 (4th Cir. 1990) (“[F]or a liberty interest to
have been implicated, some damage to [plaintiff’s]
employment status must have resulted from
publication of the reasons for his demotion.”
(emphasis added)); see also Rehberg v. Paulk, 611
F.3d 828, 853 (11th Cir. 2010) (dismissing a stigmaplus claim where the complaint did not allege that
the defendant’s media statements “caused” the
plaintiff’s indictments and arrest), aff’d on other
grounds, 132 S. Ct. 1497 (2012).
55a
Indeed, it is difficult to imagine how the public
statements of a spokesperson about the status of a
rape investigation could be causally related to a
police investigator’s decision to seek evidence or a
prosecutor’s decision to pursue an indictment. The
Evans plaintiffs argue that a causal connection may
be inferred from their allegation that Addison’s
statements were “intended to inflame the Durham
community and grand jury pool against the
plaintiffs.” But such an intent, even if taken as true,
is far too removed from the prosecutor’s decision to
indict and the investigators’ decision to seek the
NTO to justify imposition of monetary liability on
the basis of a defamation claim that is dubious
enough under common law and that the Supreme
Court was deeply reluctant to constitutionalize in
the first place.
B.
A second example of the complaints’ overreach
lies not so much in the nature of the claims as in the
identity of the defendants. The plaintiffs have sued
not just the police investigators, but also a number of
Durham city officials such as the City Manager,
Chief of Police, and various members of the police
chain of command. Plaintiffs seek monetary
damages
from
these
so-called
“supervisory
defendants” under a theory of supervisory liability.
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), however,
the Supreme Court issued several cautionary
holdings with respect to such liability—lessons that
plaintiffs have utterly failed to heed.
56a
To begin with, the Supreme Court explained
in Iqbal that “a supervisor’s mere knowledge” that
his subordinates are engaged in unconstitutional
conduct is insufficient to give rise to liability;
instead, a supervisor can be held liable only for “his
or her own misconduct.” Id. at 677. Yet the
complaints in this case repeatedly allege that the socalled supervisory defendants violated plaintiffs’
constitutional rights on the theory that they “knew
or should have known” about their subordinates’
conduct. This directly contradicts Iqbal’s holding
that such allegations, standing alone, cannot give
rise to supervisory liability.
Moreover, the Iqbal Court explained that in
order to state a claim for supervisory liability, “a
plaintiff must plead that each [supervisory]
defendant, through the official’s own individual
actions, has violated the Constitution.” Id. at 676
(emphases added); see also Robbins v. Oklahoma,
519 F.3d 1242, 1250, 1252-53 (10th Cir. 2008)
(dismissing supervisory liability claim where
complaint failed to “isolate the allegedly
unconstitutional acts of each defendant”). The
plaintiffs here, however, have roped in a number of
Durham city officials without pleading any allegedly
improper individual actions. For example, apart
from general references to name, rank, and place in
the chain of command, the Evans complaint does not
contain so much as a single individualized allegation
against named defendants Beverly Council and Lee
Russ. The Carrington complaint likewise fails to
make particularized allegations against Council,
Russ, and Michael Ripberger. The absence of
individualized allegations is all the more remarkable
57a
in light of the otherwise exhaustive nature of the
complaints: combined, the three complaints weigh in
at a staggering eight hundred-plus pages.
The plaintiffs argue that the absence of
specific allegations with respect to each individual
supervisor is of no consequence given that they have
used the term “supervisory defendants” as shorthand
to allege the collective actions and state of mind for
all of the named supervisors. Requiring repetition of
the names of specific defendants within the context
of each factual allegation, we are told, would be
“pointless and inefficient.” This contention sorely
misses the mark. The purpose of requiring a plaintiff
to identify how “each [supervisory] defendant,
through the official’s own individual actions, has
violated the Constitution,” Iqbal, 556 U.S. at 676
(emphases added), is not to erect some formalistic
rule that a complaint must mention each defendant
by name some particular number of times. The
requirement is instead designed to ensure that the
serious burdens of defending against this sort of
lawsuit are visited upon a departmental supervisor
only when the complaint “plausibly suggest[s]” that
the supervisor engaged in “his or her own
misconduct.” Id. at 681, 677 (emphasis added).
That showing is demonstrably absent here. In
addition to the complaints’ failure to identify specific
misconduct on the part of certain individual
defendants, there are numerous problems with the
individualized allegations that are actually made.
For instance, both the Carrington and McFadyen
complaints discuss at length a meeting occurring on
or around March 29, 2006, allegedly attended by
58a
specific supervisory defendants (Patrick Baker and
Steven Chalmers in the Carrington complaint;
Baker, Russ, and Ronald Hodge in the McFadyen
complaint) where the prosecutor and investigators
allegedly agreed or were instructed to expedite the
case against the Duke players despite mounting
evidence of their innocence. But that meeting has no
logical relevance to the supposed Fourth
Amendment violations of which these plaintiffs
complain because it occurred days after the
preparation of the allegedly false NTO and
McFadyen search warrant applications. In other
words, to use the language of Iqbal, the plaintiffs’
allegations regarding this meeting do not “plausibly
give rise to an entitlement to relief.” Id. at 679.
At bottom, then, the problem with the
supervisory liability claims here is that, like those at
issue in Iqbal, they fail to cross “the line from
conceivable to plausible.” Id. at 680. As in Iqbal, the
plaintiffs’ allegations here could be “consistent with”
a scenario in which the supervisory officials
somehow participated in their subordinates’
allegedly unconstitutional conduct. Id. at 678. But
the “obvious alternative explanation,” id. at 682, for
the supervisors’ conduct in assigning the case to
certain investigators and attending meetings where
the case was discussed is that they wanted to
facilitate the investigation, stay abreast of recent
developments, and bring the case to closure on a
reasonable timeline. That, after all, is their job.
In short, the complaints here are wholly
indiscriminate. They seek to sweep in everyone and
everything, heedless of any actual indications of
59a
individual malfeasance that would justify the
personal burdens that litigation can impose. What
Iqbal condemned, the complaints assay. What is
more, the complaints’ sweeping allegations mirror
the sweeping nature of the wrongs of which plaintiffs
complain. It is, of course, the purpose of civil
litigation to rectify, but not in a manner that
duplicates the very evils that prompted plaintiffs to
file suit.
C.
The damage that the plaintiffs’ theory of the
case would inflict upon the criminal justice system is
evident in a related sense as well. The plaintiffs seek
to hold the investigating officers and their
supervisors liable by repeatedly asserting notions of
conspiracy, suggesting that the defendants colluded
to investigate and prosecute the Duke players
despite the evidence of their innocence. The upshot
of such a theory, however, would be that whenever
police officers, their superiors, and prosecutors
communicate regarding an investigation into certain
suspects, that very act of communication would
expose them to a risk of monetary liability should
the suspects ultimately be exonerated. The plaintiffs’
theory of conspiracy, in other words, would inhibit
the exchange of information among police and
prosecutors that takes place every day. Thus, I could
not agree more with Judge Motz’s statement that to
allow § 1983 claims “to proceed on allegations of
such a ‘conspiracy’ would in virtually every case
render the officers’ qualified immunity from suit
‘effectively lost’ and make discovery the rule, rather
than the exception.” Ante at 24.
60a
The
improvidence
of
subjecting
law
enforcement officers to such wide-ranging liability is
supported by Supreme Court precedent in the
analogous context of intra-enterprise antitrust
conspiracy doctrine. As with the present case, that
doctrine involves civil damages actions against
related parties (for instance, a parent corporation
and its wholly owned subsidiary) on the theory that
wrongful conduct may be inferred from their intraorganizational communications. In Copperweld Corp.
v. Independence Tube Corp., 467 U.S. 752, 777
(1984), however, the Court held that such parties
cannot be held liable for “conspiring with each other”
under Section 1 of the Sherman Act, 15 U.S.C. § 1.
The Court recognized that coordination among
various actors within a company is often “necessary
if a business enterprise is to [operate] effectively,”
but that such coordination might be discouraged if
intraenterprise conspiracy liability were permitted.
Id. at 769-71. That same concern animates our
decision here. Moreover, Copperweld noted that
“[c]oordination within a firm” is frequently the
hallmark of a business’s commonplace desire to
increase its effectiveness, and not necessarily a sign
of some “effort to stifle competition.” Id. at 769. That
caution rings true here as well, where the mere fact
that public officials meet to discuss a high-profile
criminal case is far more often indicative of a desire
to foster communication and cooperation than an
insidious conspiracy to violate the Constitution.
61a
D.
A final example of the overreach infecting this
case lies in the Carrington and McFadyen plaintiffs’
attempts under Franks v. Delaware, 438 U.S. 154
(1978), to hold officers monetarily liable for seeking
from the state courts a nontestimonial order and a
search warrant for standard investigatory purposes.
Although Franks held that a warrant so
grounded in falsehoods as to effectively eliminate its
“support[ ] by Oath or affirmation” could give rise to
a Fourth Amendment violation, id. at 164-65, the
Supreme Court stressed the importance of applying
this rule so as not to vitiate the warrant process so
instrumental to the personal privacy protected by
our Bill of Rights. Indeed, in part because of
concerns with the holding’s potential effects on the
incentives of police, the Court emphasized that “the
rule announced today has a limited scope.” Id. at
165-67. And since Franks, the Court itself has never
elucidated the standards for evaluating the veracity
of affidavits supporting warrants. See Stephen W.
Gard, Bearing False Witness: Perjured Affidavits and
the Fourth Amendment, 41 Suffolk U. L. Rev. 445,
446 (2008).
In this area, therefore, we must heed the
Supreme Court’s often communicated goal of
preserving the warrant requirement. As one treatise
explains:
The Supreme Court has long expressed
a strong preference for the use of arrest
warrants and search warrants. Resort
62a
to the warrant process, the Court has
declared, is to be preferred because it
“interposes an orderly procedure”
involving “judicial impartiality,” United
States v. Jeffers, 342 U.S. 48, 51 (1951),
whereby “a neutral and detached
magistrate,” Johnson v. United States,
333 U.S. 10, 14 (1948), can make
“informed
and
deliberate
determinations,” Aguilar v. Texas, 378
U.S. 108, 110 (1964), on the issue of
probable cause. To leave such decisions
to the police is to allow “hurried
actions,” id. at 110-11, by those
“engaged in the often competitive
enterprise of ferreting out crime,”
Johnson, 333 U.S. at 14.
Wayne R. LaFave, 2 Search and Seizure § 3.1(c) (4th
ed. 2004). Because of this overarching concern, the
Supreme Court has instructed lower courts to
eschew rulings that would discourage resort to
judicial process and instead incentivize the
invocation of exceptions to the warrant requirement.
As the Court declared in determining whether a
warrant was supported by probable cause:
If the affidavits submitted by police
officers are subjected to the type of
scrutiny some courts have deemed
appropriate, police might well resort to
warrantless searches, with the hope of
relying on consent or some other
exception to the warrant clause that
might develop at the time of the search.
63a
In addition, the possession of a warrant
by officers conducting an arrest or
search greatly reduces the perception of
unlawful or intrusive police conduct, by
assuring the individual whose property
is searched or seized of the lawful
authority of the executing officer, his
need to search, and the limits of his
power to search.
Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal
quotation marks omitted). This court has specifically
acknowledged this admonition in declining to
interpret the Franks rule in an overbroad manner.
See United States v. Colkley, 899 F.2d 297, 303 (4th
Cir. 1990).
Moreover, the concern with establishing
perverse incentives to circumvent the warrant
process is all the more critical where an officer faces,
as here, personal pecuniary loss in a civil claim for
damages—as opposed to the exclusion of evidence in
a criminal matter. In this regard, it bears note that
Franks itself was an exclusionary rule case, and the
Supreme Court has never provided guidance on
whether and how the Franks rule should be
implemented in the context of § 1983 claims. See
Gard, supra, at 446 (“Th[e] absence of guidance
[from the Supreme Court] for lower courts [with
respect to the Franks rule generally] is especially
acute because Franks predates both the Supreme
Court’s revolutionary reinterpretation of the Fourth
Amendment and the development of most modern
civil rights law.”). Though this court has previously
allowed such claims to proceed, see Miller v. Prince
64a
George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007), we
must step cautiously in light of the Supreme Court’s
lack of direction in this area and its steadfast
commitment to preserving the warrant requirement
generally.
Plaintiff McFadyen’s Franks challenge to the
search warrant for his room and car in connection
with his utterly tasteless—indeed, ominous—e-mail
stands on the shakiest of grounds. The potential for
inflicting tremendous damage to the criminal justice
system by punishing officers for pursuing a courtordered NTO would be compounded by penalizing
them for attempting to investigate what initially
(and understandably) appeared to be an entirely
credible threat to perpetrate a gruesome murder. To
hold policemen liable for damages for a search even
when they request and possess a warrant, even
when they have uncovered an e-mail explicitly
vowing to kill certain people out of apparent
contempt for their class, and even where that e-mail
identifies the exact location of the slaying would be
outrageous.
The argument offered in the McFadyen
complaint—that the investigators should have
somehow realized that the e-mail was meant to be a
joke or parody—is a theory that could succeed only
in Never Never Land, a theory that takes no account
of the real and brutal rampages by disturbed
individuals on college campuses and elsewhere in
recent years. As it turned out, the e-mail was a
highly vulgarized expression of fancy. But we cannot
ascribe instant clairvoyance to those charged with
protecting the community—and who must be
65a
simultaneously encouraged to seek judicial sanction
in doing so.
II.
It cannot be emphasized too often that the
plaintiffs in this case were innocent of any criminal
wrongdoing. Their behavior in many instances was
boorish, but it was in no way illegal based on any
evidence before us. The problem is that the
immunities and rules of pleading at issue here exist
to protect the larger good of discretionary judgment
in the service of public purposes—and to prevent
defendant officials who are innocent of any
wrongdoing from being swept up by baseless
accusations in unrestrained complaints. The
infirmities of the pleadings portended what was sure
to become an extended fishing expedition, the
broader implications of which could hardly be
confined to these particular actions.
Hard cases can and do make bad law, and the
costs of these ones—outside of the limited claim we
have allowed to proceed—are much too steep. The
plaintiffs seek to thrust the prospect of monetary
liability and burdensome discovery into every
meeting between supervisor and subordinate within
a police department, every internal communication
between police officer and prosecutor, every
statement by a police spokesperson, and every effort
to invoke judicial process in furtherance of a police
investigation. Allowing these claims to proceed
would let litigation loose in such a fashion as to
impair the ability of the criminal justice system to do
its job.
66a
In sum, we run the risk here of replicating in
civil litigation the very maladies that plaintiffs
complain infected the criminal process to which they
were subjected. That is to say, individuals would be
pulled into the coercive proceedings of courts when
they have no business being there. To prolong the
overextension of legal process that has been
attempted here would portend a sorry end to a sorry
saga.
It is for this reason that I join the majority
opinion in dismissing the complaints in large part,
but preserving the state malicious prosecution claim
against Gottlieb and Himan asserted by the Evans
plaintiffs. The Evans plaintiffs were the only ones to
raise a malicious prosecution claim under North
Carolina law, and they were the only ones indicted.
Given that the elements of the federal and North
Carolina claims appear to differ, I agree with the
court that the Evans plaintiffs have pled the state
malicious prosecution claim with sufficient
specificity to survive a motion to dismiss under the
Iqbal standards governing even state claims brought
in federal court. The Evans plaintiffs are the ones
who have suffered the most harm, and their claim is
the one most plausibly grounded in North Carolina
law. That single claim with its two discrete
defendants is where the case before us essentially
stands now, and where it should have focused long,
long ago.
67a
GREGORY, Circuit Judge, concurring in part and
dissenting in part:
I concur in part in Judge Motz’s opinion,
which I believe does a very fine job disposing of most
of the issues in these cases. However, I dissent from
Parts III-B and III-B.1. Unlike the majority, I would
dismiss all state common law claims against all
individual defendants based on the North Carolina
doctrine of official immunity. I cannot agree that the
complaints sufficiently allege malicious conduct such
that the claims are not barred. Because the majority
disposes of the bulk of state common law claims on
other grounds, allowing only the Evans plaintiffs’
malicious prosecution claims against Gottlieb and
Himan to proceed, I focus my partial dissent on the
inadequacies of those claims.
The North Carolina doctrine of official
immunity protects public officials from personal
liability for discretionary acts performed in the
course of their official duties, so long as the officers
acted without malice or corruption. Collins v. N.
Carolina Parole Comm’n, 473 S.E.2d 1, 3 (N.C.
1996). Thus, a police officer is protected from
personal liability for investigative conduct unless the
plaintiffs “allege and prove that the defendant’s acts
were malicious or corrupt.” Schlossberg v. Goins, 540
S.E.2d 49, 56 (N.C. Ct. App. 2000) (citing Jones v.
Kearns, 462 S.E.2d 245, 248 (N.C. Ct. App. 1995). “A
defendant acts with malice when he wantonly does
that which a man of reasonable intelligence would
know to be contrary to his duty and which he intends
to be prejudicial or injurious to another.” In re Grad
v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984) (citing
68a
Givens v. Sellars, 159 S.E.2d 530 (N.C. 1968)). “An
act is wanton when it is done of wicked purpose, or
when done needlessly, manifesting a reckless
indifference to the rights of others.” Id. at 890–91
(citing Givens, 273 N.C. at 535).
Because the plaintiffs chose to bring suit in
federal court, the sufficiency of their allegations
must be judged against the pleading standard
articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Under that standard, a
complaint’s “bare assertions” of malicious conduct
are not entitled to the assumption of truth. See
Iqbal, 556 U.S. at 680-81. Rather, the complaint
must plausibly suggest malicious conduct by alleging
“sufficient factual matter” to draw a “reasonable
inference” of malice. Id. at 678. Although the
plausibility requirement is not a probability
requirement, id., where there is an “obvious
alternative explanation” for the conduct alleged,
malice may not plausibly be inferred, id. at 682
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
567 (2007)).
The majority does not explain why the
complaint plausibly alleges Gottlieb and Himan
acted maliciously, but instead merely says it is so. I
cannot agree. Stripping the complaint of its
conclusory allegations, it does not plausibly suggest
the officers acted “wantonly,” in a way that
reasonable officers “would know to be contrary to
[their] duty,” for the purpose of framing the
plaintiffs. In re Grad, 321 S.E.2d at 890. On the
contrary, the “obvious alternative explanation” for
the officers’ conduct is that they were acting as
69a
reasonable, though not perfect, police officers would
to investigate Mangum’s rape allegations, which
they did not know to be false.
To begin, the complaint alleges that Gottlieb
and Himan diligently investigated a case assigned to
them by their supervisors, not that they sought to
frame the plaintiffs. Consistent with their official
duties,
the
officers
interviewed
Mangum,
interviewed Pittman, interviewed Duke lacrosse
players, obtained a search warrant and an NTO,
collected DNA evidence, and turned over the full
results of their investigation to prosecutor Nifong,
candidly briefing him on the case. The complaints
also allege that the officers continued the
investigation under the direction of Nifong and their
police department supervisors. Far from plausibly
suggesting the officers acted maliciously to frame the
plaintiffs, the “obvious alternative explanation” for
their conduct is that they were doing their job and
investigating a case assigned to them, in
collaboration with the prosecutor.
The plaintiffs make much of Mangum’s
inconsistent accounts of the alleged attack and
Pittman’s initial denial, alleging on this basis that
the detectives knew Mangum was lying and
proceeded with the investigation with the intent of
framing Duke lacrosse players. This is simply
implausible. Mangum told numerous people, on
numerous occasions, that she was raped. Although
the details of her accusations shifted, she was known
to have been intoxicated on the night of the alleged
assault. Further, as the other two complaints make
clear, a nurse at Duke Medical Center informed
70a
officer Gottlieb that Mangum’s examination had
revealed evidence “consistent with sexual assault.”
And an email sent by one of the lacrosse players just
hours after the alleged attack stated that, “after
tonight’s show,” the author planned to have strippers
over again and to murder them. Given the facts
alleged in the three consolidated cases, it is
implausible to infer that Gottlieb and Himan knew
Mangum was lying and therefore acted maliciously
to frame the lacrosse players. The fact that an
alleged rape victim changes the details of her story
does not mean she is lying, nor does a witness’s
initial denial always correspond with the truth.
Police officers owe a duty to the public to take
seriously and investigate allegations of rape—a duty
that cannot and should not be dismissed on such
flimsy grounds.
Nor can the plaintiffs rest their allegations of
malice on the officers’ supposed witness tampering,
use of suggestive photo arrays, or fabrication of false
DNA evidence. As for the allegations of witness
tampering, the complaint alleges that the officers
threatened to enforce an outstanding warrant
against Pittman if she did not recant her earlier
statement that Mangum was lying. But leveraging
an outstanding warrant against a recalcitrant
witness is hardly beyond the pale of police
investigative techniques. Given that this occurred
after Mangum told police she had been raped and
Gottlieb was informed that medical evidence
corroborated her accusations, the obvious alternative
explanation is that Gottlieb and Himan were trying
to persuade Pittman to tell the truth, not to frame
the plaintiffs.
71a
As for the suggestive photo arrays, the
complaint does allege that the procedures violated
police department policy. However, the obvious
explanation for the officers’ conduct is that the police
officers were attempting to identify a suspect to
further investigate Mangum’s claims, which they did
not know were false. Although their photo array
techniques were not perfect, a mere deviation from
departmental policy, by itself, does not plausibly
suggest they acted “wantonly” for the purpose of
framing the plaintiffs.
Finally, although the complaint alleges that
Gottlieb and Himan were present during the
meetings in which Nifong and DNA laboratory
personnel
decided
to
withhold
potentially
exculpatory DNA information, these meetings took
place hardly a month into the investigation, before
indictments had even been secured. Neither the
Constitution nor any law I am aware of requires
police officers to disclose potentially exculpatory
information at this early stage—either to the grand
jury or to suspects—and I do not believe a
reasonable police officer would believe such a duty
exists. The officers’ failure to do something they were
under no obligation to do does not plausibly suggest
malice.
Although in retrospect it may be clear to some
that Mangum’s accusations were baseless, the
complaint does not plausibly allege Gottlieb and
Himan knew this to be the case, particularly in light
of the corroborating medical information they
possessed. Rather, their investigative conduct
leading to the plaintiffs’ indictments, though not
72a
perfect, is consistent with the conduct of reasonable
police officers assigned a rape case. If a complaint of
this kind can proceed, I fear that every rape case
where a victim has given inconsistent accounts and a
witness has changed her statement could subject
investigating police officers to personal liability. I do
not believe the North Carolina doctrine of official
immunity or federal pleading standards can be
circumvented so easily, and I fear this Court has
done a disservice to both by denying Gottlieb and
Himan official immunity.
For these reasons, I dissent from Parts III-B
and III.B.1 of the majority opinion.
73a
[ENTERED DECEMBER 17, 2012]
FILED: December 17, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 11-1436 (L)
(1:07-cv-00739-JAB-WWD)
___________________
DAVID F. EVANS; COLLIN FINNERTY; READE
SELIGMANN
Plaintiffs - Appellees
v.
STEVEN W. CHALMERS; BEVERLY COUNCIL;
RONALD HODGE; JEFF LAMB; MICHAEL
RIPBERGER; LEE RUSS; PATRICK BAKER
Defendants - Appellants
and
CITY OF DURHAM, NORTH CAROLINA; MARK
GOTTLIEB;
BENJAMIN
HIMAN;
DAVID
ADDISON;
MICHAEL
NIFONG;
LINWOOD
WILSON; STEPHEN MIHAICH; DNA SECURITY,
INCORPORATED; RICHARD CLARK; BRIAN
MEEHAN
Defendants
74a
___________________
No. 11-1438
(1:07-cv-00739-JAB-WWD)
___________________
DAVID F. EVANS; COLLIN FINNERTY; READE
SELIGMANN
Plaintiffs - Appellees
v.
CITY OF DURHAM, NORTH CAROLINA; MARK
GOTTLIEB;
BENJAMIN
HIMAN;
DAVID
ADDISON
Defendants - Appellants
and
MICHAEL
NIFONG;
LINWOOD
WILSON;
STEVEN W. CHALMERS; BEVERLY COUNCIL;
RONALD HODGE; JEFF LAMB; STEPHEN
MIHAICH; MICHAEL RIPBERGER; LEE RUSS;
DNA SECURITY, INCORPORATED; RICHARD
CLARK; BRIAN MEEHAN; PATRICK BAKER
Defendants
___________________
No. 11-1453
(1:08-cv-00119-JAB-WWD)
___________________
EDWARD CARRINGTON; CASEY J. CARROLL;
MICHAEL P. CATALINO; GALE CATALINO;
75a
THOMAS V. CLUTE; KEVIN COLEMAN; JOSHUA
R. COVELESKI; EDWARD J. CROTTY; EDWARD
S. DOUGLAS; KYLE DOWD; PATRICIA DOWD;
DANIEL
FLANNERY;
RICHARD
GIBBS
FOGARTY; ZACHARY GREER; IRENE GREER;
ERIK
S.
HENKELMAN;
STEVEN
W.
HENKELMAN; JOHN E. JENNISON; BEN
KOESTERER; MARK KOESTERER; JOYCE
KOESTERER; FRED KROM; PETER J. LAMADE;
ADAM LANGLEY; CHRISTOPHER LOFTUS;
DANIEL
LOFTUS;
BARBARA
LOFTUS;
ANTHONY
MCDEVITT;
GLENN
NICK;
NICHOLAS O’HARA; LYNNDA O’HARA; DANIEL
OPPEDISANO; SAM PAYTON; JOHN BRADLEY
ROSS;
KENNETH
SAUER,
III;
STEVE
SCHOEFFEL; ROBERT SCHROEDER; DEVON
SHERWOOD; DANIEL THEODORIDIS; BRET
THOMPSON; CHRISTOPHER TKAC; TRACY
TKAC; JOHN WALSH, JR.; MICHAEL WARD;
ROBERT
WELLINGTON,
IV;
WILLIAM
WOLCOTT; MICHAEL YOUNG
Plaintiffs - Appellees
v.
PATRICK
BAKER;
STEVEN
CHALMERS;
RONALD HODGE; LEE RUSS; BEVERLY
COUNCIL; JEFF LAMB; MICHAEL RIPBERGER
Defendants - Appellants
and
76a
DUKE
UNIVERSITY;
DUKE
UNIVERSITY
HEALTH SYSTEMS, INCORPORATED; RICHARD
BRODHEAD; PETER LANGE; LARRY MONETA;
JOHN BURNESS; TALLMAN TRASK; SUZANNE
WASIOLEK; MATTHEW DRUMMOND; AARON
GRAVES; ROBERT DEAN; TARA LEVICY;
THERESA ARICO; J. WESLEY COVINGTON;
KATE HENDRICKS; VICTOR DZAU; CITY OF
DURHAM;
LINWOOD
WILSON;
MARK
GOTTLIEB; BENJAMIN HIMAN; STEPHEN
MIHAICH;
DAVID
ADDISON;
MARSHA
COVINGTON COVINGTON, Executrix of the Estate
of John Wesley Covington
Defendants
___________________
No. 11-1458
(1:07-cv-00953-JAB-WWD)
___________________
RYAN MCFADYEN; MATTHEW WILSON; BRECK
ARCHER
Plaintiffs - Appellees
v.
PATRICK
BAKER;
STEVEN
CHALMERS;
RONALD HODGE; LEE RUSS; BEVERLY
COUNCIL; JEFF LAMB; MICHAEL RIPBERGER
Defendants - Appellants
and
77a
DUKE
UNIVERSITY;
DUKE
UNIVERSITY
POLICE
DEPARTMENT;
AARON
GRAVES;
ROBERT DEAN; LEILA HUMPHRIES; PHYLLIS
COOPER; WILLIAM F. GARBER, III; 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.; DUKE UNIVERSITY HEALTH SYSTEMS,
INCORPORATED;
PRIVATE
DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD; THERESA
ARICO, R. N.; TARA LEVICY, R. N.; THE CITY OF
DURHAM,
NORTH
CAROLINA;
MICHAEL
NIFONG;
STEPHEN
MIHAICH;
EDWARD
SARVIS; LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE MICHAEL; DAVID ADDISON; MARK D.
GOTTLIEB; BENJAMIN W. HIMAN; LINWOOD
WILSON;
RICHARD
D.
CLAYTON;
DNA
SECURITY, INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN, Ph. D.; VICTOR J. DZAU, MD;
ALLISON
HALTON;
KEMEL
DAWKINS;
SUZANNE WASIOLEK; STEPHEN
BRYAN;
MATTHEW
DRUMMOND;
DUKE
POLICE
DEFENDANTS
Defendants
___________________
No. 11-1460
(1:07-cv-00953-JAB-WWD)
___________________
78a
RYAN MCFADYEN; MATTHEW WILSON; BRECK
ARCHER
Plaintiffs - Appellees
v.
THE CITY OF DURHAM, NORTH CAROLINA;
DAVID ADDISON; MARK GOTTLIEB; BENJAMIN
HIMAN
Defendants - Appellants
and
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.; DUKE UNIVERSITY HEALTH SYSTEMS,
INCORPORATED;
PRIVATE
DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD; THERESA
ARICO, R. N.; TARA LEVICY, R. N.; MICHAEL
NIFONG;
STEPHEN
MIHAICH;
EDWARD
SARVIS; LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE
MICHAEL;
LINWOOD
WILSON;
RICHARD D. CLAYTON; DNA SECURITY,
INCORPORATED; RICHARD CLARK; BRIAN
MEEHAN, Ph. D.; VICTOR J. DZAU, MD;
ALLISON
HALTON;
KEMEL
DAWKINS;
79a
SUZANNE WASIOLEK; STEPHEN
BRYAN;
MATTHEW
DRUMMOND;
DUKE
POLICE
DEFENDANTS; PATRICK BAKER; STEVEN W.
CHALMERS; RONALD HODGE; LEE RUSS;
BEVERLY COUNCIL; JEFF LAMB; MICHAEL
RIPBERGER
Defendants
___________________
No. 11-1465
(1:08-cv-00119-JAB-WWD)
___________________
EDWARD CARRINGTON; CASEY J. CARROLL;
MICHAEL P. CATALINO; GALE CATALINO;
THOMAS V. CLUTE; KEVIN COLEMAN; JOSHUA
R. COVELESKI; EDWARD J. CROTTY; EDWARD
S. DOUGLAS; KYLE DOWD; PATRICIA DOWD;
DANIEL
FLANNERY;
RICHARD
GIBBS
FOGARTY; ZACHARY GREER; IRENE GREER;
ERIK
S.
HENKELMAN;
STEVEN
W.
HENKELMAN; JOHN E. JENNISON; BEN
KOESTERER; MARK KOESTERER; JOYCE
KOESTERER; FRED KROM; PETER J. LAMADE;
ADAM LANGLEY; CHRISTOPHER LOFTUS;
DANIEL
LOFTUS;
BARBARA
LOFTUS;
ANTHONY
MCDEVITT;
GLENN
NICK;
NICHOLAS O’HARA; LYNNDA O’HARA; DANIEL
OPPEDISANO; SAM PAYTON; JOHN BRADLEY
ROSS;
KENNETH
SAUER,
III;
STEVE
SCHOEFFEL; ROBERT SCHROEDER; DEVON
SHERWOOD; DANIEL THEODORIDIS; BRET
THOMPSON; CHRISTOPHER TKAC; TRACY
TKAC; JOHN WALSH, JR.; MICHAEL WARD;
80a
ROBERT
WELLINGTON,
WOLCOTT; MICHAEL YOUNG
IV;
WILLIAM
Plaintiffs - Appellees
v.
CITY
OF
DURHAM;
MARK
GOTTLIEB;
BENJAMIN HIMAN; DAVID ADDISON
Defendants - Appellants
and
PATRICK
BAKER;
STEVEN
CHALMERS;
RONALD HODGE; LEE RUSS; BEVERLY
COUNCIL; JEFF LAMB; MICHAEL RIPBERGER;
DUKE
UNIVERSITY;
DUKE
UNIVERSITY
HEALTH SYSTEMS, INCORPORATED; RICHARD
BRODHEAD; PETER LANGE; LARRY MONETA;
JOHN BURNESS; TALLMAN TRASK; SUZANNE
WASIOLEK; MATTHEW DRUMMOND; AARON
GRAVES; ROBERT DEAN; TARA LEVICY;
THERESA ARICO; J. WESLEY COVINGTON;
KATE HENDRICKS; VICTOR J. DZAU; LINWOOD
WILSON;
STEPHEN
MIHAICH;
MARSHA
SAUNDERS COVINGTON, Executrix of the Estate
of John Wesley Covington
Defendants
81a
___________________
JUDGMENT
___________________
In accordance with the decision of this court,
judgment is entered affirming in part, dismissing in
part, reversing in part and remanding in these
consolidated appeals.
In No. 11-1436 (1:07-cv-00739-JAB-WWD),
the judgment of the district court is REVERSED on
all issues appealed (Counts 1, 2, 3, 4, and 6 below).
In No. 11-1438 (1:07-cv-00739-JAB-WWD),
the judgment of the district court is AFFIRMED as
to Count 13 below against Defendants Gottlieb and
Himan. The judgment is REVERSED as to Count 13
below against Defendant Addison. The judgment is
REVERSED as to Counts 1, 2, 3, 4, 5, and 14 below
against all defendants. The judgment is REVERSED
as to Counts 13, 16, and 17 below against the City of
Durham. The City’s appeal as to Count 23 below is
DISMISSED.
In No. 11-1453 (1:08-cv-00119-JAB-WWD),
the judgment of the district court is REVERSED on
all issues appealed (Counts 21, 25, and 27 below).
In No. 11-1465 (1:08-cv-00119-JAB-WWD),
the judgment of the district court is REVERSED as
to Counts 21, 23, and 25 below against all
defendants. The judgment is REVERSED as to
Counts 26, 30, and 31 below against the City of
Durham. The City’s appeal as to Count 32 below is
DISMISSED.
82a
In No. 11-1458 (1:07-cv-00953-JAB-WWD),
the judgment of the district court is REVERSED on
all issues appealed (Counts 1, 2, 5, 13, and 18 below).
In No. 11-1460 (1:07-cv-00953-JAB-WWD),
the judgment of the district court is REVERSED as
to Counts 1, 2, 5, and 18 against all defendants. The
judgment is REVERSED as to Counts 12, 14, 25, and
26 below against the City of Durham. The City’s
appeal as to Count 41 below is DISMISSED.
This judgment shall take effect upon issuance
of this court’s mandate in accordance with Fed. R.
App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK
83a
[ENTERED MARCH 31, 2011]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH
CAROLINA
RYAN MCFADYEN, MATTHEW WILSON
and BRECK ARCHER
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:07CV953
MEMORANDUM OPINION
This case involves 41 claims set out in an
exhaustive 428-page Second Amended Complaint
[Doc. #136] by Plaintiffs Ryan McFadyen
(“McFadyen”), Matthew Wilson (“M. Wilson”), and
Breck Archer (“Archer”) against Defendants Duke
University (“Duke”), the Duke University Police
Department (“Duke Police”), Duke University
Associate Vice President for Campus Safety and
Security Aaron Graves (“Graves”), Director and
Chief of the Duke Police Department Robert Dean
(“Dean”), Duke Police Assistant Police Chief Leila
Humphries (“Humphries”), Duke Police Major
Phyllis Cooper (“Cooper”), Duke Police Medical
Center Affairs Manager William F. Garber, II
84a
(“Garber”), Duke Police Major James Schwab
(“Schwab”), Duke Police Lieutenant Joseph Fleming
(“Fleming”), Duke Police Lieutenant Jeffrey O. Best
(“Best”), Duke Police First Sergeant Gary N. Smith
(“Smith”), Duke Police First Sergeant Greg
Stotsenberg (“Stotsenberg”), Chairman of the
Executive Committee of the Duke Board of Trustees
Robert K. Steel (“Steel”), Duke President Richard H.
Brodhead (“Brodhead”), Duke Provost Peter Lange
(“Lange”), Duke Executive Vice President Tallman
Trask, III (“Trask”), Duke Senior Vice President for
Public Affairs and Government Relations John
Burness (“Burness”), Duke Vice President for
Student Affairs Larry Moneta (“Moneta”), Duke
Chancellor for Health Affairs and President and
Chief Executive Officer of Duke University Health
Systems, Inc. Victor J. Dzau (“Dzau”), Duke
Secretary Allison Haltom (“Haltom”), Duke Vice
President for Campus Services Kemel Dawkins
(“Dawkins”), Duke Assistant Vice President for
Student Affairs and Dean of Students Suzanne
Wasiolek (“Wasiolek”), Duke Associate Dean of
Students and Director of Judicial Affairs Stephen
Bryan (“Bryan”), Duke Auxiliary Services Senior
Manager IT and Head of the Duke Card Office
Matthew
Drummond
(“Drummond”),
Duke
University Health Systems, Inc. (“Duke Health”),
Private
Diagnostic
Clinic,
PLLC
(“Private
Diagnostic”), Duke Health Dr. Julie Manly
(“Manly”), Duke Health Nurse Theresa Arico
(“Arico”), Duke Health Nurse Tara Levicy (“Levicy”),
the City of Durham (“the City”), former District
Attorney Michael B. Nifong (“Nifong”)1, Durham
District Attorney Nifong previously filed a Notice of
Bankruptcy in the case of Evans v. City of Durham, 1:07CV739.
1
85a
City Manager Patrick Baker (“Baker”), Durham
Chief of Police Steven Chalmers (“Chalmers”),
Durham Deputy Chief of Police Ronald Hodge
(“Hodge”), Executive Officer to the Durham Chief of
Police Lee Russ (“Russ”), Durham Police
Commander of Investigative Services Stephen
Mihaich (“Mihaich”), Durham Police Uniform Patrol
Bureau Commander Beverly Council (“Council”),
Durham Police Patrol District Two Commander Jeff
Lamb (“Lamb”), Durham Police Department District
Two Lieutenant Michael Ripberger (“Ripberger”),
Durham Police Department District Two Sergeant
Laird Evans (“Evans”), Director of the Durham
Emergency Communications Center James T.
Soukup (“Soukup”), Durham Police Public Relations
Coordinator and Public Information Officer Kammie
Michael (“Michael”), Durham Police Department
CrimeStoppers Coordinator David W. Addison
(“Addison”), Durham Police Department District
Two Sergeant Mark D. Gottlieb (“Gottlieb”), Durham
Although the Evans case was stayed against Nifong during his
Bankruptcy, it was reopened after the Bankruptcy Court
determined that the claims against Nifong in the Evans case
were “personal injury tort” claims that must be considered in
this Court rather than in the Bankruptcy Court. Nifong has not
filed a Notice of Bankruptcy, a Motion to Dismiss, or any other
response in the present case, and the parties have not
addressed the status of Nifong as a Defendant, other than with
respect to Plaintiffs’ contentions that the City should be held
responsible for Nifong’s actions. The Court has addressed that
issue and other common legal issues in this Memorandum
Opinion, but has not addressed issues specific only to Nifong
given this procedural posture. If Plaintiffs intend to proceed
against Nifong individually in light of the Court’s
determinations herein, Plaintiffs should file a Notice in this
case addressing Nifong’s status as a Defendant and addressing
the impact of any remaining bankruptcy issues.
86a
Police Department Investigator Benjamin W. Himan
(“Himan”), District Attorney’s Office Investigator
Linwood Wilson (“Wilson”), Durham Police
Department District Two Patrol Officer Richard D.
Clayton (“Clayton”), DNA Security, Inc. (“DSI”), DSI
President Richard Clark (“Clark”), and DSI Lab
Director Brian Meehan (“Meehan”).
Defendants have collectively filed multiple,
separate Motions to Dismiss, that is, a Motion to
Dismiss by Defendant Meehan [Doc. #174], a Motion
to Dismiss by Defendants Soukup, Michael, Addison
and Clayton [Doc. #169], a Motion to Dismiss by
Defendant Linwood Wilson [Doc. #167], a Motion to
Dismiss by Defendants Duke, Brodhead, Bryan,
Burness, Dawkins, Drummond, Dzau, Graves,
Haltom, Lange, Moneta, Steel, Trask, and Wasiolek
(collectively, the “Duke University Defendants”)
[Doc. #175], a Motion to Dismiss by Defendants
Duke Health, Private Diagnostic, Arico, Levicy, and
Manly (collectively, the “Duke SANE Defendants”)
[Doc. #177], a Motion to Dismiss by Duke Police,
Best, Cooper, Dean, Fleming, Garber, Humphries,
Schwab, Smith, and Stotsenberg (collectively, the
“Duke Police Defendants”) [Doc. #176], a Motion to
Dismiss by Defendant Himan [Doc. #171], a Motion
to Dismiss by Defendant Gottlieb [Doc. #168], a
Motion to Dismiss by Defendants Baker, Chalmers,
Russ, Mihaich, Council, Lamb, Ripberger, Evans,
and Hodge [Doc. #170], a Motion to Dismiss by
Defendants DSI and Clark [Doc. #173], and a Motion
to Dismiss by the City [Doc. #179]. Defendants
previously filed various Motions to Dismiss with
respect to Plaintiffs’ First Amended Complaint, but
those Motions to Dismiss were rendered moot by the
87a
filing of Plaintiffs’ Second Amended Complaint on
February 23, 2010. In their present Motions to
Dismiss the parties have incorporated the prior
briefing filed in connection with the original Motions
to Dismiss and, as appropriate, have added
additional briefing with respect to new matters
raised in the Second Amended Complaint. The new
Motions to Dismiss with respect to the Second
Amended Complaint were referred to the Court for
determination on May 4, 2010, and are addressed in
this Memorandum Opinion.2
I.
FACTUAL BACKGROUND
This case arises out of the investigation of
members of the Duke University men’s lacrosse
team on charges of rape, sexual assault, and
kidnapping. The Plaintiffs here are three members
of the lacrosse team who were subject to a NonTestimonial Order (“NTO”) but who were not
2 The Court notes that some of the issues raised in the
Motions to Dismiss in the present case are similar to certain of
the issues raised in two other cases in this District that have
been identified by the parties and the Clerk’s Office as “related”
to the present case: Carrington, et al. v. Duke University, et al.
(1:08CV119) and Evans, et al. v. City of Durham, et al.
(1:07CV739). Those cases also involve multiple Motions to
Dismiss for which briefing has now been completed and which
have been referred to the Court for consideration. Orders and
Opinions are being entered in those cases contemporaneously
with the present Order and Opinion in this case. These cases
have not been formally consolidated, and are still proceeding as
separate cases, although consolidation of discovery may be
appropriate in light of the overlapping issues raised. In
addition, given the overlapping legal issues, much of the
analysis presented in the three Opinions in these cases is the
same. The Court restates the analysis in each case, however, so
that each Opinion can stand alone.
88a
indicted in that investigation (the “Plaintiffs”). The
Court here sets out the facts as alleged in the Second
Amended Complaint, which the Court is required to
accept as true for purposes of the present Motions to
Dismiss.3
On the evening of March 13, 2006, members of
the lacrosse team hosted a party at a residence at
610 N. Buchanan Avenue. The residence was owned
by Duke and rented by members of the lacrosse
team, and was located in a neighborhood adjacent to
Duke’s campus. Two dancers were hired to perform
at the party, and the first dancer, Kim Pittman,
arrived at 11:15 p.m. The second dancer, Crystal
Mangum, arrived at 11:40 p.m. but was “dazed and
stumbling.” (Second Am. Compl. ¶ 197). Plaintiffs
allege that witnesses saw the dancers plan their
routine outside of the residence and then enter the
residence at midnight, which was corroborated by
pictures taken at that time. When the performance
began, Mangum was “incapable of dancing in any
fashion,” fell as she took off her shoes, and “was
speaking unintelligibly.” (Second Am. Compl. ¶ 201).
The dance ended within four minutes and the
dancers left the living room without objection from
the guests. Mangum left her shoe on the living room
floor. By 12:30, Mangum was observed outside the
residence “apparently locked out” and “saying she
lost her shoe.” (Second Am. Compl. ¶ 205-206).
Plaintiffs allege that pictures showed Mangum
smiling, but stumbling around the backyard, and a
The Court notes that many of Plaintiffs’ factual
allegations do not relate directly to the claims that are actually
asserted. However, in the interest of completeness, the Court
has attempted here to summarize the various allegations.
3
89a
picture taken at 12:41 showed Mangum being
assisted into Pittman’s car before Pittman drove
away.4
Plaintiffs allege that as she drove off,
“Pittman made a derogatory racial remark and
received one in turn.” (Second Am. Compl. ¶ 215).
Pittman “made a show of calling the police” and
reporting the incident and directing police to 610 N.
Buchanan, although Plaintiffs contend that “[i]t was
plainly obvious from the 911 call itself that the call
was a poorly veiled ruse.” (Second Am. Compl. ¶ 216,
218). Durham Police Sergeant Shelton responded to
the call but found no one there. Plaintiffs contend
that the remaining guests had left based on prior
incidents in which students were charged by police
regardless of whether any actual offense had been
committed, as discussed in greater detail below.
Pittman subsequently drove to a 24-hour
grocery store to find a security guard to help get
Mangum out of her car. The security guard, Angel
Altmon, was unable to coax Mangum out of the car
and called 911 for assistance.5 Plaintiffs allege that
Sgt. Shelton and Officer Barfield arrived, and
4 Plaintiffs allege that all of this information, including
corroborating pictures and video clips, was assembled by
defense counsel by March 26, 2006, but both District Attorney
Nifong and Duke President Brodhead refused the offers to view
the information.
Plaintiffs allege that security guard Angel Altmon was
interviewed by Plaintiffs’ defense counsel and “was confident
that Mangum had not been sexually assaulted,” but Durham
police did not interview Altmon or ask for her statement until 9
months later, in December 2006. (Second Am. Compl. ¶ 239242).
5
90a
Pittman admitted to them that she had placed the
“prank 911 call” reporting a racial epithet at 610 N.
Buchanan. (Second Am. Compl. ¶ 230). Sgt. Shelton
approached Mangum but she was in the car feigning
unconsciousness. Plaintiffs allege that “Sgt. Shelton
suspected a ruse, so he broke open an ammonia
capsule under Mangum’s nose, and Mangum began
mouth-breathing,
confirming
his
suspicions.”
(Second Am. Compl. ¶ 232). Sgt. Shelton tried to pull
Mangum out of the car, but she grabbed the parking
break and Sgt. Shelton had to apply significant force
to get Mangum to let go. Plaintiffs allege that
“[w]hen Sgt. Shelton finally got Mangum out of the
car, Mangum resumed feigning unconsciousness.”
(Second Am. Compl. ¶ 233). Plaintiffs allege that
Sgt. Shelton interpreted her behavior as a product of
drug or alcohol impairment and decided to take her
to the Durham County Jail to be detained until she
sobered up. Mangum was placed in Officer Barfield’s
car, and Officer Barfield told the Durham
Emergency Communications Center (“DECC”) that
“She’s breathing, appears to be fine. She’s not in
distress. She’s just passed out drunk.” (Second Am.
Compl. ¶ 235). However, Plaintiffs allege that Sgt.
Shelton soon concluded that Mangum was showing
signs and symptoms of severe mental illness and
concluded that she was in need of immediate
psychiatric assistance. However, Plaintiffs allege
that the dispatch audio recordings relating to
Mangum’s involuntary commitment “were not
released and were later destroyed or secreted by
Captain Lamb or upon his direction after Plaintiffs’
defense counsel demanded in writing on May 1,
2006, that the recordings be produced and/or
preserved.” (Second Am. Compl. ¶ 238).
91a
Plaintiffs contend that after the decision was
made
to
initiate
involuntary
commitment
proceedings at the Durham Access Center, Mangum
overheard a radio exchange between officers in
which one officer reported that Mangum had two
young children at home, and the responding officer
directed a police unit to go to Mangum’s house to
check on the children, and, if there was no adult
supervision there, to call Department of Social
Services. Plaintiffs contend that during the intake
proceedings at the Durham Access Center, a nurse
asked Mangum if she was raped and Mangum
nodded “yes”, thus “extract[ing] herself from the
involuntary commitment proceedings, and spar[ing]
herself the possibility of being separated from her
children.” (Second Am. Compl. ¶ 252). Plaintiffs
contend that the intake nurse “thought Mangum’s
bizarre behavior was consistent with fractured
thinking, and a break with reality.” (Second Am.
Compl. ¶ 253). Officer Barfield then transported
Mangum to the Duke University Medical Center
(“DUMC”) Emergency Department for a sexual
assault examination. Plaintiffs allege that during
that ride, Mangum did not provide any other
information regarding her sexual assault claim, but
did provide Officer Barfield with a detailed
description of the property she claimed was stolen by
Pittman: “her money ($2,000), her ID, her cell phone,
and her bag.” (Second Am. Compl. ¶ 255). Plaintiffs
contend that the Defendants were aware of all of this
information and “agreed to conceal the evidence of
the events at the Durham Center Access on March
14th, knowing their obvious relevance to Mangum’s
credibility.” (Second Am. Compl. ¶ 259).
92a
Plaintiffs allege that when Mangum arrived at
DUMC, Sgt. Shelton questioned Mangum about her
rape claim. At that time, Mangum recanted the rape
claim, but insisted that her money had been taken.
However, “[a]s Sgt. Shelton was reporting that
Mangum had recanted her rape claim to his Watch
Commander, someone advised him that Mangum
was now claiming she was raped again.” (Second
Am. Compl. ¶ 263). Plaintiffs contend that the audio
recording of Sgt. Shelton reporting that Mangum
had recanted “was erased by City of Durham
Defendants” after Plaintiffs’ defense counsel had
requested that all audio recordings be preserved.
(Second Am. Compl. ¶ 264).
Plaintiffs allege that Mangum then gave
wildly varying accounts of the rape. Mangum was
next interviewed by Durham Officer Gwen Sutton,
and Plaintiffs allege that Sutton knew that Mangum
was lying. During the course of the interviews,
Mangum claimed that she had performed at a
bachelor party at “610 N. Buchanan” and Sgt.
Shelton thereafter established that Mangum and
Pittman had both “worked at the address Pittman
complained of in her 911 call: 610 N. Buchanan.”
(Second Am. Compl. ¶ 268, 273). Plaintiffs allege
that “[a]s such, the investigation of Mangum’s false
allegations fell within the Duke Police Department’s
jurisdiction” and Duke Police Lt. Best was
dispatched to DUMC to initiate the investigation for
Duke Police. (Second Am. Compl. ¶ 273-274). A
“transfer briefing” took place between Durham
Police and Duke Police at a loading dock of DUMC
shortly after 3:08 a.m. on March 14, 2006. The
transfer briefing included Duke Police Major Schwab
93a
and “all of the supervisors.” (Second Am. Compl.
¶ 277-279). In addition, Plaintiffs allege that the
Duke Officer in Charge at DUMC responded to the
Emergency Department, and from his observations,
concluded that Mangum was “faking,” which he
reported to Lt. Best. Lt. Best instructed Officer Day
and others to go to 610 N. Buchanan to make contact
with the occupants, and after leaving 610 N.
Buchanan, Officer Day returned to the Emergency
Department to assist Lt. Best. While there “Officer
Day took a full report of the findings of the Durham
Police investigation up to that point” including that
involuntary commitment proceedings had been
underway, that Mangum had given several
conflicting accounts and had recanted her claims,
and that “Durham Police decided that the rape
investigation should not be pursued any further,
leaving open only the possibility of misdemeanors
arising out of Mangum’s claim that Pittman stole
her money, ID, cell phone, and purse.” (Second Am.
Compl. ¶ 285). Lt. Best was also advised that the
911 call reporting a racial epithet at 610 N.
Buchanan was a ruse made by Pittman. Plaintiffs
allege that “[s]ome, but not all, of these findings
were included in Officer Day’s written report” which
was submitted that same morning and was reviewed
and approved by Duke Police supervisors Dean and
Best and by Duke Police Investigator Smith. (Second
Am. Compl. ¶ 287). Duke Police Chief Robert Dean
notified Dean Wasiolek of the allegations and
advised that Mangum “‘kept changing her story and
was not credible,’” which was a synopsis from Officer
Day’s report. (Second Am. Compl. ¶ 288). However,
Plaintiffs allege that Officer Day’s report was
subsequently “buried” and that when the existence
94a
of the report was later revealed, “Duke Police and
Durham Police agreed to misrepresent what
transpired on the loading dock of the E.D. and told
reporters that Officer Day was ‘eavesdropping’ on
Durham Police conversations, and had no place in
the investigation.” (Second Am. Compl. ¶ 290).
Plaintiffs allege that Durham City Manager Baker
orchestrated the agreement “and the ensuing media
campaign to mislead the public about the Duke
Police Department’s role in the case,” and further
allege that “Defendants Baker, Graves, Dean, and
Burness all participated in the media campaign to
impeach Officer Day’s report.” (Second Am. Compl.
¶ 290).
Plaintiffs allege that Mangum gave another
inconsistent account of events to Investigator Jones
at 3:50 a.m., and that over the course of the 11 hours
that she was present at DUMC, she never gave a
consistent account of events. Plaintiffs also contend
that Mangum “revealed a propensity to lie when selfreporting her symptoms with a particular proclivity
for reporting pain that did not exist.” (Second Am.
Compl. ¶ 293). Plaintiffs contend that all of this
information was documented in Mangum’s charts at
DUMC. Plaintiffs further allege that Mangum’s
Sexual
Assault
Examination
(“SAE”
or
“Examination”) began approximately 6 hours after
she arrived at DUMC. Plaintiffs allege that the
Sexual Assault Examination Report was signed by
Nurse Levicy, but that Levicy did not perform the
actual Examination because she was not qualified or
authorized to do so under DUMC policy. Instead, the
Examination was performed by Dr. Julie Manly,
while Levicy observed and filled in the Report form.
95a
Plaintiffs allege that by signing the Report even
though she did not perform the examination, Levicy
“knowingly created a false and misleading medical
record in order to create the false impression that
DUMC deemed her qualified and competent to
collect and interpret forensic medical evidence.”
(Second Am. Compl. ¶ 299). Plaintiffs allege that
Levicy’s supervisor, Nurse Arico “knowingly and
willfully added credibility to forensic findings that
Levicy in fact did not - and could not - make.”
(Second Am. Compl. ¶ 300). Plaintiffs also allege
that although Dr. Manly began the examination, the
examination was not completed because Mangum
protested and insisted that the examination cease.
Plaintiffs allege that during the limited examination
that was conducted, Dr. Manly found no injury to
Mangum’s pelvic region, and “[t]he only notation
Manly made was ‘diffuse edema of the vaginal
walls.’” (Second Am. Compl. ¶ 306). Plaintiffs allege
that other minor injuries were photographed and
included in the Report, specifically a scratch on
Mangum’s heel and knee, but these injuries can be
seen on Mangum’s heel and knee in the photographs
taken at the party, and therefore pre-dated her
arrival at 610 N. Buchanan. Plaintiffs allege that
during her time at DUMC, the medical records
consistently noted that she was “‘in no obvious
discomfort,’” even though Mangum reported that her
pain was a “‘10 out of 10.’” (Second Am. Compl.
¶ 309). At the conclusion of the examination,
Mangum was discharged, and the evidence was
collected, gathered up, and delivered to Duke Police
Officer Joyce Sale.
96a
Plaintiffs allege that the next day, Mangum
went to UNC hospital claiming intense pain,
reporting that she had been sexually assaulted the
night before, and seeking prescription pain
medication. However, according to Plaintiffs,
Mangum’s medical history at UNC revealed a long
history of severe psychological disorders and current
medication with an anti-psychotic drug, and also
noted that she frequently came to UNC clinics for
prescription pain medication and she was a “‘very
high risk’” for narcotic abuse. (Second Am. Compl.
¶ 315). Plaintiffs contend that Mangum gave
additional inconsistent accounts of the alleged attack
while she was at UNC hospital.
Based on this unfolding of events, Plaintiffs
allege that within 48 hours after Mangum’s original
claim of rape, there was substantial evidence
establishing that her claim of rape was not true,
including her long psychiatric history, her history of
feigning symptoms to obtain pain medication, her
inconsistent accounts of the alleged rape, the lack of
physical injuries, and all of the circumstances
surrounding her sudden claim to avoid involuntary
commitment. Plaintiffs contend that given this
evidence, “in order to justify continuing the
investigation, those facts had to be concealed, and, in
addition, new, false evidence would have to be
fabricated.” (Second Am. Compl. ¶ 330).
Plaintiffs allege that on March 14, 2006,
Durham Police Sergeant Gottlieb learned of the rape
allegations. Plaintiffs allege that Gottlieb had a wellknown history of targeting Duke Students and of
violating the constitutional rights of Duke Students,
97a
including by engaging in unlawful searches and
seizures and fabricating evidence against Duke
Students.6 Plaintiffs allege that upon learning of the
rape allegations, Gottlieb contacted Investigator
Jones, who advised Gottlieb that Mangum’s claims
were false and that she was going to rule the
allegations “‘unsubstantiated.’” (Second Am. Compl.
¶ 333). However, Plaintiffs allege that Gottlieb, who
was Jones’ superior in rank, ordered Jones not to
close the investigation or make any formal findings,
and instead turn the investigation over to him.
Plaintiffs allege that Durham Police officer Mihaich
had final policymaking authority and/or delegated
his final policymaking authority, and that an official
with that final policymaking authority had
authorized the assignment of the investigation to
Gottlieb, thus removing the investigation from the
Criminal Investigations Division, in violation of the
Department’s orders and procedures. Plaintiffs
allege that the “chain of command” for the
investigation became the “patrol chain of command,”
which was “structurally incompetent to supervise
the investigation.” (Second Am. Compl. ¶ 337).
Plaintiffs contend that a reasonable policymaker
would have known that this assignment would
“inexorably lead to deprivations of Plaintiffs’
constitutional rights.” (Second Am. Compl. ¶ 338).
Plaintiffs contend that Durham supervisors Mihaich,
Baker, Chalmers, Hodge, and other City officials
failed to return the case to an experienced
investigator.
Plaintiffs allege that Gottlieb was a “rogue officer”
with a known proclivity for abusing Duke Students, and that
his supervisors knew of and ratified this behavior, as discussed
in greater detail as part of the discussions of Counts 12 and 13.
6
98a
Plaintiffs allege that after assuming control of
the investigation, Gottlieb sent an e-mail alert to
neighborhood residents on March 15, 2006,
informing them that police were “conducting an
investigation concerning a rape of a young woman by
three males at 610 N. Buchanan,” even though
Gottlieb knew that everyone who had interacted
with Mangum believed she was lying. (Second Am.
Compl. ¶ 342-343). Plaintiffs allege that Gottlieb in
his e-mail asserted that the attackers were “three
males,” even though Mangum had given inconsistent
accounts, because he knew that 610 N. Buchanan
was occupied by three Duke Students. (Second Am.
Compl. ¶ 343-344). Plaintiffs allege that the next
day, on March 16, 2006, Gottlieb assigned the rape
case to Investigator Himan, who had been an
investigator for two months and who had never
directly worked with a District Attorney before.
Plaintiffs allege that this assignment violated
Durham Police Department policy, because the
investigation should have been conducted by the
Criminal Investigation Division’s Violent Crimes
Unit.
Plaintiffs contend that on March 15, 2006,
Dean Wasiolek informed the captains of the lacrosse
team that police were investigating allegations of
rape alleged to have occurred at the party, and that
they did not need lawyers and should cooperate with
police fully. Plaintiffs allege that Duke officials
directed Duke Police officers and employees to assist
Gottlieb in his investigation, and that Duke Police
“delegated their primary supervisory and final
policymaking authority with respect to the
supervision and conduct of the investigation to
99a
Himan, Gottlieb, [and] Nifong.” (Second Am. Compl.
¶ 354). Plaintiffs allege that this delegation by Duke
was “the product of an established policy or custom
not to intervene when Duke students’ constitutional
rights are being violated.” (Second Am. Compl.
¶ 357). Plaintiffs contend that Gottlieb met with
Duke Police Sgt. Smith on March 16, and that
Detective Smith “provided a CD containing
identification photos of Plaintiffs and their
teammates for identification procedures, and also
provided them a document entitled ‘Duke PD
Report.’” (Second Am. Compl. ¶ 360). Plaintiffs
allege that Duke also gave Durham Investigators the
keys to the residence at 610 N. Buchanan.7
Plaintiffs allege that Gottlieb and Himan
interviewed Mangum on March 16, and during that
interview she gave them purported names and
descriptions of her alleged attackers. Mangum
identified her alleged attackers as white men, and
therefore Devon Sherwood, an African-American
team member, was eliminated as a plausible suspect.
(Second Am. Compl. ¶ 363). Mangum was presented
with photo arrays of team members, including the
three Plaintiffs in this case, but Mangum did not
identify any of the team members as her “attackers.”
Mangum was presented with more photo arrays of
players a few days later on March 21, but said that
she did not recognize any of them. Based on the
evidence gathered as of March 21, Plaintiffs allege
Because Plaintiffs were not residents of 610 N.
Buchanan, they do not challenge this search. Duke was the
owner of the property, renting it to lacrosse team members
other than Plaintiffs, and apparently Duke provided police with
the keys to the property to execute a search warrant obtained
for that residence.
7
100a
that Mangum was not credible, and in any event, she
had eliminated all of the members of the lacrosse
team as plausible suspects.
In addition, Plaintiffs allege that the other
dancer, Pittman, spoke with Himan over the
telephone on March 20, 2006, and Pittman told
Himan that Mangum’s claims were “a crock.” On
March 22, 2006, Gottlieb and Himan commanded
Pittman to come to the police station and give them
a new, written statement. Plaintiffs allege that
Pittman completed a written account that did not
allow for enough time in which she was not with
Mangum for the alleged sexual assault to have
occurred. Plaintiffs allege that Pittman was then
served with an outstanding warrant for her arrest on
a probation violation that posed a high likelihood of
revocation. In response, Pittman wrote an addendum
to her statement “which transparently fabricated a
window of opportunity for a sexual assault to have
occurred.” (Second Am. Compl. ¶ 386).
Plaintiffs contend that Gottlieb and Himan
“deliberately avoided taking investigative steps that
would have produced even more evidence of
Plaintiffs’ innocence,” including failing to interview a
neighboring witness who observed Mangum’s arrival
and departure. (Second Am. Compl. ¶ 387-389).
Plaintiffs also contend that Gottlieb and Himan
failed to undertake a record check that would have
revealed that Mangum had previously made a false
report of rape, and failed to investigate Mangum’s
prior arrest and conviction. Plaintiffs contend that
Himan and Gottlieb also failed to confront Mangum
with photographs and other contradictory evidence
101a
to challenge her claims. Plaintiffs contend that
Gottlieb
nevertheless
continued
with
the
investigation.
Plaintiffs allege that Duke Police and Duke
Officials agreed to “[d]eliver all 47 team members to
Gottlieb and Himan, at a designated location, to be
interrogated by Durham Police” as part of a
conspiracy between Duke and Durham Investigators
to “orchestrate the mass interrogation of
uncounseled students.” (Second Am. Compl. ¶ 402403). Pursuant to the agreement, on March 21,
Plaintiffs were instructed to report to the Durham
Police Department the next day, March 22, at 3:00
p.m. Plaintiffs contend that they were advised that
they did not need lawyers, and Dean Wasiolek did
not revise the advice she had previously given to the
team, through the captains, not to tell anyone, even
their parents. On the evening of March 21, Plaintiffs’
defense counsel spoke with nearly all of the team
members, and the team members requested a
postponement of the police questioning in order to
give them sufficient time to inform their parents of
what they were doing.
Plaintiffs contend that Duke and the City
then each undertook to retaliate against the team
members for that decision to postpone the police
questioning. Specifically, Plaintiffs allege that
Gottlieb and Himan knowingly made false,
sensational assertions in an affidavit that they
submitted in support of an application for a “NonTestimonial Identification Order” (“NTO”) and then
leaked the NTO and fabricated affidavit to the media
in order to subject Plaintiffs to public condemnation.
102a
With respect to the affidavit submitted in support of
the application for the NTO, Plaintiffs contend that
Gottlieb and Himan added fabricated allegations in
the affidavit that were attributed to Mangum, but
that were false and that did not come from Mangum
or any witness, including an allegation that the
women were sexually threatened with a broomstick,
that the accuser lost several fingernails in the
violent struggle, and that team members used each
others’ names to disguise their ‘true identity.’
Plaintiffs allege that these allegations “came from
Gottlieb’s brain.” (Second Am. Compl. ¶ 418). With
regard to the “broomstick,” Plaintiffs allege that
Gottlieb twisted information “into a complete
fabrication.” (Second Am. Compl. ¶ 422). With
regard to the fingernails, Plaintiffs allege that
Mangum never claimed to anyone that she lost
fingernails in a struggle. Instead, Plaintiffs allege
that Mangum told Gottlieb she had “started affixing
and painting her false nails” before the party, and
that unpainted fingernails and nail polishing and
painting accessories were found in Mangum’s purse
and in the bathroom at 610 N. Buchanan. (Second
Am. Compl. ¶ 424-425). Plaintiffs contend that the
false information was provided in the affidavit in
support of the NTO application, and in public
statements made by Addison as the spokesperson for
the Durham Police Department. Plaintiffs contend
that the NTO affidavit also falsely claimed that the
team members made efforts to conceal their sports
affiliation. In addition, Plaintiffs contend that in
addition to the fabricated information, the NTO
affidavit also failed to reveal that all of the team
members had been excluded as plausible suspects
based on Mangum’s physical descriptions and
103a
inability to identify any alleged attacker in the photo
arrays.
Plaintiffs allege that Duke Chairman Steel
was aware that Mangum’s accusations were false
and that Gottlieb “was on a vendetta” and that
Addison was “lying publicly about the evidence,” but
that Steel determined that it would be “‘best for
Duke’ if Plaintiffs were tried and convicted on
Mangum’s false accusations.” (Second Am. Compl.
¶ 445-53). Plaintiffs contend that Steel, acting
through Brodhead, Trask, Burness, and Graves,
directed the Duke Police Department to conceal
evidence of the prior investigative role of Duke Police
officers, to fabricate false and misleading police
reports that covered up the Duke Police officers’
personal knowledge of events at DUMC on March
14, and to give false reports about Mangum’s
appearance at DUMC to lend credibility to
Mangum’s false claims. Plaintiffs also contend that
Duke Police “had the power to revoke its delegated
authority and/or to intervene” but refused to do so at
the direction of Steel. (Second Am. Compl. ¶ 457458). Plaintiffs allege that Steel and Brodhead
created a “Crisis Management Team” consisting of
Steel, Brodhead, Lange, Trask, Burness, Moneta,
Dzau, and Secretary Haltom. Plaintiffs contend that
the Crisis Management Team “allow[ed] the Gottlieb
investigation to proceed unabated” and “misled
Plaintiffs and the public” into believing that the
Duke Police Department had no power or authority
to investigate Mangum’s allegations or intervene in
the Durham Police investigation. (Second Am.
Compl. ¶ 461-465). Plaintiffs allege that Duke Police
supervisors similarly “made numerous public
104a
statements designed to conceal the fact that Duke
Police had the responsibility to investigate
Mangum’s claims.” (Second Am. Compl. ¶ 476).
Plaintiffs further allege that on March 27,
2006, Duke Police supervisors instructed Duke
Police Officers who interacted with or observed
Mangum on March 14 to provide Nifong with
“bystander witness statements” that “deliberately
concealed their exculpatory observations of Mangum
during the early morning hours of March 14th” and
“[r]eveal[ed] observations of Mangum’s behavior only
to the extent that the observations tended to
enhance the reliability of Mangum’s claim.” (Second
Am. Compl. ¶ 466-467). In addition, Plaintiffs allege
that these statements “disavow[ed] any role
whatsoever in an investigative capacity” and
“[c]onceal[ed] the fact that the investigation was a
Duke Police investigation, until Duke abdicated its
jurisdictional responsibility.” (Second Am. Compl.
¶ 466-467). With respect to these contentions,
Plaintiffs set out specific allegations regarding the
reports of Duke Police Officers Mazurek and Falcon.
(Second Am. Compl. ¶ 468-472). In addition,
Plaintiffs note that Duke Police Officer Day had
prepared a report on March 14 that included much of
the exculpatory evidence. However, Plaintiffs allege
that Officer Day’s original report was not submitted
with the “bystander” statements, and that Duke
Police instead submitted a “continuation report” that
Duke Police supervisors directed Officer Day to write
to “deliberately impeach” his own prior report.
(Second Am. Compl. ¶ 474-475).
105a
With respect to District Attorney Nifong,
Plaintiffs allege that Nifong took over the
investigation on March 24, 2006, in order to help
him win the upcoming election for District Attorney.
(Second Am. Compl. ¶ 478-485). Plaintiffs allege that
Nifong intended to use the media interest in the
case, generated by the allegations in the NTO
affidavit, to aid in his election campaign. Plaintiffs
allege that Nifong contacted Durham Police Captain
Lamb on March 24, as Plaintiffs were arriving at the
Forensics Unit pursuant to the NTO, and Lamb
agreed to “delegate to Nifong his official
policymaking authority over the investigation. Lamb
then instructed Gottlieb, Himan, and Ripberger to
conduct the investigation only in the manner Nifong
directs.” (Second Am. Compl. ¶ 487). Plaintiffs
contend that Nifong used the Plaintiffs’ “non-citizen
status” to “galvanize public condemnation of the
Plaintiffs.” (Second Am. Compl. ¶ 490). Plaintiffs
also allege that Nifong began making statements to
media representatives regarding the charges,
without any factual basis, in order to generate media
coverage to assist him in his campaign.
Plaintiffs allege that on March 24, Duke Vice
President Trask, knowing that the team members
were represented by counsel, demanded meetings
with team members. Trask met with the team
captains and began asking questions. When the
captains said that their counsel had advised them
not to discuss details of the evening, Trask insisted
they answer and “suggested that the conversation
was protected from disclosure by a privilege that did
not exist.” (Second Am. Compl. ¶ 498). Plaintiffs
allege that Trask was attempting to coerce a waiver
106a
of the team members’ rights and subvert their right
to counsel. Plaintiffs contend that shortly thereafter
the administrators who were at that meeting were
compelled to tell the police what the team members
had told them. (Second Am. Compl. ¶ 499).
Plaintiffs contend that in retaliation for their
assertion of their First, Fifth, and Fourteenth
Amendment rights, the Duke Defendants, Nifong,
and the Durham Police Spokesperson Defendants
(Addison and Michael) agreed to participate in a
media campaign to publicly vilify Plaintiffs and their
teammates by falsely asserting that a rape had
occurred, that the perpetrators were team members,
that all members of the team were involved as
principals or accomplices, and that all members of
the
team
were
“stonewalling”
the
police
investigation. (Second Am. Compl. ¶ 501). Plaintiffs
allege that as part of these media campaign, Nifong
made multiple public statements, including false
statements that were “not-for-attribution,” as set out
in the Second Amended Complaint. (Second Am.
Compl. ¶ 501-503, 590). Plaintiffs allege that
Durham Police Spokesperson Addison also made
numerous false public statements designed to
stigmatize Plaintiffs, as set out in the Second
Amended Complaint, including in an e-mail flyer.
(Second Am. Compl. ¶ 504-517). Plaintiffs contend
that the e-mail flyer falsely described the alleged
assault as an established fact and stated that the
“[t]he victim was sodomized, raped, assaulted and
robbed,” even though Plaintiffs contend that Duke
Police knew that there was no evidence of sexual
assault. (Second Am. Compl. ¶ 507). Plaintiffs
contend that Addison acted with malice, and that all
107a
of his statements were made in direct violation of
Durham Police Department Orders and Operating
Procedures. Plaintiffs contend that Durham
supervisors Baker, Chalmers, Russ, and Hodge had
final policymaking authority for the City and failed
to remedy Addison’s conduct. (Second Am. Compl. ¶
514-517). Plaintiffs also allege that under
Commander Lamb’s direction, Durham Police and
Duke University personnel created a “Wanted”
poster using the Plaintiffs’ photographs, that was
then disseminated across campus by “Duke
University personnel at the direction of Duke
University officials, and across the city of Durham at
the direction of City of Durham officials by City of
Durham personnel.” Plaintiffs contend both that the
creation and dissemination was directed by Duke
and City officials with “final policymaking
authority,” and that Duke and City officials failed to
correct the conduct or prevent the violations of
Plaintiffs’ rights. (Second Am. Compl. ¶ 521-524).
Plaintiffs contend that the publication of the
“Wanted” poster was pursuant to a Duke Police and
Durham Police policy to create a “poster” and e-mail
alert whenever a potentially highprofile crime was
reported within the Duke Police Department’s
jurisdiction. (Second Am. Compl. ¶ 525-527).
Plaintiffs allege that Duke officials also
publicly stigmatized Plaintiffs, including in
statements made by University Spokesperson
Burness
in
which
Burness
stated
(“notforattribution”) that what had actually happened
was far worse than what was being reported and
that everyone on the team was involved. (Second
Am. Compl. ¶ 529-533). Plaintiffs contend that Duke
108a
Officials Lange and Brodhead also made statements
“bolstering the myth that Plaintiffs had erected a
‘Stonewall of Silence.’” (Second Am. Compl. ¶ 534).
Plaintiffs contend that Brodhead refused the offer by
Plaintiffs’ defense counsel to view the evidence
compiled, and that Brodhead also gave “tacit
approval of the Faculty’s massive public
stigmatization of the Plaintiffs.” (Second Am. Compl.
¶ 538-540). Plaintiffs also allege that on March 25,
2005, Steel directed Brodhead and Athletic Director
Joe Alleva to publicly announce that the University
had forfeited two lacrosse games as “punishment for
the party,” which Plaintiffs contend was part of
Steel’s objective to “force a trial and convictions.”
(Second Am. Compl. ¶ 528, 541).
Plaintiffs allege that Duke faculty members
organized a “candlelight vigil” to be held on the lawn
of 610 N. Buchanan, which “transformed into a
‘Wake-up Call’ held by largely the same protestors,
who surrounded 610 N. Buchanan, banged pots and
pans, and shouted at the residents to come out and
confess.” (Second Am. Compl. ¶ 544-548). Plaintiffs
allege that the protesters included members of the
Duke faculty and administration, and that the Duke
Police did not intervene. (Second Am. Compl. ¶ 549551). Plaintiffs also allege that during a class in
which they were present, a Duke professor began the
lecture by stating that “‘[i]t is a fact’ that a rape
occurred in the lacrosse house” and that “team
members are covering up for their teammates,” and
Plaintiffs further allege that they were also
presumed guilty by clergy members giving a homily
at Duke Chapel. (Second Am. Compl. ¶ 552-554).
Plaintiffs contend that Duke University officials
109a
failed to correct, discipline, or otherwise respond to
“their employees who participated in the public
stigmatization of the Plaintiffs.” (Second Am. Compl.
¶ 558).
Plaintiffs contend that “Nifong, Michael,
Addison, Lamb, Michael, Hodge, and Baker,
individually and in concert, fabricated and released
to the public false evidence that Plaintiffs were
racists and that there was a ‘deep racial motivation’
for the sexual assault they knew did not happen.”
(Second Am. Compl. ¶ 566). As part of this
contention, Plaintiffs allege that Defendant Soukup
delegated his final policymaking authority to Hodge,
Addison, and Michael, and that pursuant to that
authority, they deleted or destroyed the audio
recordings from the early hours of March 14 because
the
recordings
contained
the
exculpatory,
contemporaneous reports of Sgt. Shelton and other
officers attending to Mangum. Plaintiffs allege that
Soukup approved and ratified this conduct. Plaintiffs
further allege that while concealing and destroying
those recordings, Durham Police Officer Michael
“disseminated and then knowingly misrepresented
the source and credibility of Pittman’s 911 call
reporting a racial slur at 610 N. Buchanan.” (Second
Am. Compl. ¶ 570). Plaintiffs contend that although
Durham Police knew the call was from Pittman, they
released the call as that of an “unknown,
anonymous” caller who was “fearful of a racist mob
spilling out of the residence at 610 N. Buchanan
earlier in the evening.” (Second Am. Compl. ¶ 573).
Plaintiffs allege that Nifong and Durham Police
Officer Michael continued to falsely insist that they
had not identified the caller, even though Pittman
110a
had told Sgt. Shelton and Himan and Gottlieb that
she was the one who made the call. Plaintiffs
contend that Nifong also made additional public
statements focusing on the “racist dimension” of the
allegations. (Second Am. Compl. ¶ 575). Plaintiffs
contend that following release of the 911 call,
Brodhead made a statement denouncing “racism and
its hateful language,” and Duke faculty members
and clergy also responding to the “racist dimension”
of the allegations in ways that Plaintiffs contend
were “attempting to stir up racial animus against
the Plaintiffs.” (Second Am. Compl. ¶ 581-590).
Plaintiffs contend that on March 27, Nifong
met with Gottlieb and Himan to review the evidence
and realized they did not have evidence to
counterbalance the contradictions in Mangum’s
story. Plaintiffs allege that Nifong nevertheless
continued with the investigation because “he was
already committed” based on his statements to the
press. (Second Am. Compl. ¶ 593). Nifong instructed
Gottlieb and Himan to obtain copies of the e-mails
sent by the team members after the party. Plaintiffs
allege that “Gottlieb obtained an email written by
Ryan McFadyen” and “[w]ithin 10 minutes” Gottlieb
and Himan were back in Nifong’s office “with a copy
of an email exchange that contained [McFadyen]’s
email parody of American Psycho.” (Second Am.
Compl. ¶ 594). Plaintiffs allege that Gottlieb, Himan,
and Nifong discussed the fact that Mangum “did not
identify or even recognize [McFadyen] in the March
16th
Identification
Procedure”
but
Nifong
nevertheless instructed Himan and Gottlieb to
obtain a warrant to search McFadyen’s room.
(Second Am. Compl. ¶ 595). Plaintiffs allege that
111a
“[t]he point of obtaining the search warrant was not
to search for evidence; it was to place [McFadyen]’s
email in a public document, stripped of the reply
emails that reveal that [McFadyen]’s email is a
parody.” (Second Am. Compl. ¶ 595). Plaintiffs
contend that as part of the search warrant
application, Nifong, Himan, and Gottlieb revised
their prior NTO affidavit to include the text of
McFadyen’s e-mail, with the intent that McFadyen
and the other team members would be vilified when
the affidavit was provided to the media. Plaintiffs
allege that Nifong, Gottlieb, and Himan agreed to
falsely include in the warrant application’s
Description of Crimes “the assertion that police are
investigating a ‘Conspiracy to Commit Murder,’ with
strippers as the putative victims.” (Second Am.
Compl. ¶ 605). Plaintiffs also allege that Nifong,
Gottlieb and Himan “added to the list of ‘items to be
seized’ Mangum’s white shoe, described as ‘Property
belonging to a 27 y/o B/F victim to include but not
limited to a white 6 inch shoe” even though the
investigators had already found and seized that shoe
over a week earlier. (Second Am. Compl. ¶ 606).
Plaintiffs contend that in the affidavit, Gottlieb and
Himan added the false allegation that “further
interviews showed” that the players “also used
numbers when calling for one another across the
room again to hide their identities,” but that no
witness had told Gottlieb and Himan this and it was
another fabrication. (Second Am. Compl. ¶ 609).
Plaintiffs allege that Gottlieb, Himan, and Nifong
proceeded with the warrant application with a
malicious, evil motive and without probable cause.
Nifong, Gottlieb, and Himan obtained the search
warrant, but the state court judge sealed the
112a
warrant application. Plaintiffs contend that “sealing
the warrant frustrated its only purpose” and that in
executing the warrant, Gottlieb was “in a rage” and
destroyed furniture. (Second Am. Compl. ¶ 612-613).
Plaintiffs allege that Duke Police Sgt. Smith stood by
while Himan and Gottlieb conducted the search.
Plaintiffs allege that “[w]hile there, he indicated that
he knew the warrant was not supported by probable
cause or reasonable suspicion.” (Second Am. Compl.
¶ 614). Plaintiffs contend that Sgt. Smith was aware
that Gottlieb and Himan had falsified the material
allegations in the Warrant Affidavit and that there
was no probable cause to believe the crimes alleged
had been committed, but “‘turned a blind eye’” to the
violations of McFadyen’s constitutional rights
occurring in his presence. (Second Am. Compl.
¶ 615). Plaintiffs allege that the warrant was
unsealed April 5, 2006, and McFadyen was “vilified”
as intended by Gottlieb, Himan, and Nifong. (Second
Am. Compl. ¶ 616).
Plaintiffs allege that on March 27 and 28, the
State Bureau of Investigation advised both Nifong
and Himan that they had completed the serology
tests on the rape kit items and that there was no
semen, blood, or saliva on any of them, and that as a
result, no further DNA testing would be performed.
Plaintiffs allege that in response, Himan and Nifong
sent swabs of a four-foot area of the bathroom floor
and a towel collected during the search of 610 N.
Buchanan. Plaintiffs allege that Himan informed
Nifong and the Durham Police supervisors that the
SBI lab tests would produce no DNA match.
Plaintiffs further allege that Himan spoke with
Mangum about the case and about the negative DNA
113a
test results. Plaintiffs contend that prior to this
time, Nifong had taken the public position that the
DNA tests would “‘reveal who the attackers were.’”
(Second Am. Compl. ¶ 626).
On March 29, 2006, a meeting was held
between Duke and City officials, including Nifong,
Baker, Hodge, Russ, Graves, and Dean. Gottlieb and
Himan came to report on the status of the evidence
in the investigation. Plaintiffs allege that Gottlieb
and Himan failed to take notes or preserve their
timeline of the investigation that they prepared for
Baker. However, Plaintiffs allege that Nifong,
Gottlieb, and Himan reported at the meeting the SBI
test results and that they had “no suspects and no
evidence that a rape occurred.” (Second Am. Compl.
¶ 631). Plaintiffs contend that after the meeting, the
Duke Crisis Management Team ( Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, and Haltom),
Duke Police supervisors (Dawkins, Graves, Dean,
Humphries, Cooper, Garber, Schwab, Fleming, and
Best) and Durham Police supervisors (Baker,
Chalmers, Hodge, Russ, Mihaich, Council, Lamb,
Ripberger, Evans, and Soukup) “all were aware of
and willfully blind and/or deliberately indifferent to
the repeated and ongoing violations of Plaintiffs’
constitutional rights” by Nifong, Himan, Addison,
and Michael, and also “willfully refused or failed to
acknowledge, receive or seize the overwhelming
evidence of innocence that had been amassed in the
case.” (Second Am. Compl. ¶ 633). Plaintiffs further
allege that the Duke and City officials, acting with
deliberate indifference to Plaintiffs’ constitutional
rights, and knowing that the Plaintiffs were
innocent, directed Nifong and Himan to “act swiftly
114a
to charge, prosecute, and convict Plaintiffs and/or
their teammates.” (Second Am. Compl. ¶ 634).
Plaintiffs contend that “[a]ll appearances of a
legitimate investigation were abandoned, and
replaced by a conspiracy whose final object was to
prosecute and convict Plaintiffs and/or their
teammates in the absence of probable cause,
reasonable suspicion, or factual possibility for that
matter, in violation of Plaintiffs’ constitutional
rights,” by stigmatizing Plaintiffs for the purpose of
depriving them of a fair and impartial jury,
concealing exculpatory evidence, manufacturing
inculpatory evidence, abusing legal process, invading
Plaintiffs’ financial and educational records, and
engaging in “an overarching conspiracy not to
intervene among all Defendants who had the power
to prevent the wrongs they knew were conspired to
be done to Plaintiffs over the course of the next
year.” (Second Am. Compl. ¶ 639-640).
As the basis for these contentions, Plaintiffs
allege first that they were entitled to the SBI report
of the test results by March 31, and that Nifong
refused to provide the exculpatory report to
Plaintiffs for two weeks. Plaintiffs further allege that
during that time, Nifong continued to make public
statements in which he began to fabricate evidence
and allegations to fit the lack of DNA evidence,
without revealing that he already knew that there
was no DNA evidence. Plaintiffs allege that Nifong,
Gottlieb, and Himan received the final SBI report on
April 4, 2006, and Nifong instructed Gottlieb and
Himan to obtain quotes for additional DNA testing.
Plaintiffs allege that Brian Meehan, an employee of
testing lab DNA Security, Inc. (“DSI”), had been
115a
“lobbying for business from the City” for his DNA
lab, and offered to reduce his rates in order to be
involved in the “high profile case.” (Second Am.
Compl. ¶ 656).
Plaintiffs contend that Nifong was also
determined to manufacture inculpatory evidence by
directing Gottlieb and Himan to prepare another
photo identification procedure and “tell Mangum she
would see pictures of people they believe were
present at the party, and have her pick three.”
(Second Am. Compl. ¶ 663). Mangum came to the
police station on April 4 and was shown a
PowerPoint presentation of photos of every
Caucasian member of the lacrosse team, using
photos obtained as a result of the NTO. Plaintiffs
allege that this identification procedure “violated
nearly all of the Department’s safeguards against
negligent and malicious misidentification codified in
Durham Police Department’s” policies, because it
was administered by Gottlieb, who provided
feedback during the process, and because it did not
include true fillers and Mangum was told that the
photos were a collection of the individuals police
believed were at the party. (Second Am. Compl.
¶ 667-668). Plaintiffs also allege that Mangum was
shown pictures from the party that were in the
possession of Durham Police prior to the April 4
identification procedure, which enabled her to
identify and describe individuals who were at the
party that she previously had not recognized or
identified. (Second Am. Compl. ¶ 669-675, 678).
Plaintiffs contend that Nifong and Gottlieb were
required to provide them with a written report of the
April 4 procedure since it was conducted with all of
116a
the team members’ photographs, but failed to do so
and deliberately concealed from Plaintiffs’ defense
counsel the fact that the identification procedure had
been conducted. Plaintiffs contend that in doing so,
Gottlieb and Himan were violating the NTO
processes, were concealing exculpatory evidence, and
were foreclosing Plaintiffs’ opportunity to petition
the Court to be called as witnesses before the Grand
Jury. (Second Am. Compl. ¶ 677-686). Plaintiffs
contend that the fact that Mangum had previously
failed to identify any team members in the two prior
identification procedures was deliberately excluded
from the NTO application, the search warrant for
McFadyen’s room, and from the Investigation
Timeline prepared by Gottlieb for the City Council.
(Second Am. Compl. ¶ 676).
Plaintiffs allege that on April 5, Nifong filed
an ex parte motion and obtained an order directing
additional DNA testing of certain items by DNA
Security, Inc. In the ex parte motion, Nifong
revealed that the SBI’s DNA test was completed and
the results showed no link to any team member, but
that information was not revealed to Plaintiffs or
their defense counsel. (Second Am. Compl. ¶ 688692). Plaintiffs further allege that on that same day,
the search warrant application for McFadyen’s room
was unsealed, making it a public record that was
picked up by the media. Plaintiffs allege that in
response, Defendants Moneta, Bryan, and Wasiolek
unilaterally suspended McFadyen as a student
without notice, hearing, or inquiry. (Second Am.
Compl. ¶ 693-696). Plaintiffs allege that Dean
Wasiolek demanded that McFadyen waive his rights
under FERPA, and that Duke officials, including
117a
Defendant Brodhead, then began giving interviews
and making public comments to the media indicating
that Duke had suspended him under the “‘safety of
the community’” provisions of the student code of
conduct. (Second Am. Compl. ¶ 693-698). Plaintiffs
allege that in contrast, Duke did not take any
adverse action against students who sent
threatening e-mails to Coach Pressler or to team
members and their families.8
Plaintiffs allege that Matthew Wilson (“M.
Wilson”) was also subject to disciplinary sanctions
when it was reported that he had pled guilty to a
charge of Driving While Impaired in May 2006, even
though the incident was during the summer outside
of Durham County and was not connected with
Duke. Plaintiffs allege that Duke unilaterally
suspended M. Wilson from the lacrosse team
indefinitely and made statements to the press to
“ensure the University’s disciplinary action against
Matthew [Wilson] was widely known.” (Second Am.
Compl. ¶ 713). Plaintiffs further allege that in
response to the citation, Defendant Bryan referred
him for a Judicial Board hearing, and falsely
informed him that it was “policy” to suspend for two
semesters any student who was charged, on campus
or off, with a Driving While Impaired offense.
Plaintiffs allege that Duke officials refused to allow
M. Wilson to transfer to another school as a student
in good standing, even though other students had
Plaintiffs allege that Matthew Wilson and his family
are permanent residents of Durham, and were targets for
drive-by shootings after their home address was posted on a
web site calling for a violent response to the allegations.
(Second Am. Compl. ¶ 709).
8
118a
been allowed to transfer as students in good
standing in lieu of being suspended. At the Judicial
Board hearing, M. Wilson was questioned about the
events of March 13-14 and was suspended for two
semesters, which was modified to one semester on
appeal. Plaintiffs allege that the Judicial Board
proceeding violated the Student Code of Conduct,
which “clearly does not authorize the Undergraduate
Judicial Board to subject students to disciplinary
proceedings for conduct that occurs off-campus, out
of county, while not enrolled in University courses.”
(Second Am. Compl. ¶ 720). Plaintiffs also allege
that Breck Archer was subject to a disciplinary
proceeding in the summer of 2005 for damage to a
room he had not yet moved into, and then was
suspended for the fall 2005 semester for failing to
submit a form after he had completed his community
service hours. Plaintiffs allege that this disciplinary
proceeding was without basis in the Student Code of
Conduct.
As to all of the disciplinary measures,
Plaintiffs allege that the Student Code of Conduct is
incorporated in the Duke Student Bulletin, which
provides disciplinary procedures and safeguards.
Plaintiffs allege that during the disciplinary
proceedings, Duke failed to provide the procedural
and substantive protections provided in the Student
Bulletin. As to McFadyen, Plaintiffs contend that the
interim suspension did not meet the standard set out
in the Bulletin, that McFadyen did not receive notice
of the provision he was charged with violating, that
he did not receive a hearing within 3 days or an
informal review by a 3-person committee as provided
in the Bulletin, and that he was not provided with
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the procedural safeguards set out in the Bulletin.
With respect to M. Wilson, Plaintiffs allege that the
Bulletin expressly limited its jurisdictional authority
to exclude off-campus conduct except in limited
circumstances not applicable to him. In addition,
Plaintiffs allege that the proceedings against M.
Wilson were “predetermined” and violated his right
to a fair hearing under the Bulletin. Finally as to
Archer, Plaintiffs allege that Duke’s “suspension of
Archer was unprecedented and remains inexplicable
by reason and common sense.” (Second Am. Compl.
¶ 744). Plaintiffs allege that Defendant Bryan
“rigged” the hearing process and deprived Archer of
his rights under the procedures set out in the
Bulletin. (Second Am. Compl. ¶ 728-745).
Plaintiffs allege that on April 6, certain items
were transferred from the SBI to DSI for DNA
testing, pursuant to the order Nifong had obtained
the day before. The results of DSI’s testing were
provided on April 10 to Gottlieb, Himan, and Wilson
and “revealed the existence of DNA characteristics
from up to four different males” and excluded
Plaintiffs and all of the team members as potential
contributors of the DNA. (Second Am. Compl. ¶ 747748). Plaintiffs allege that Nifong nevertheless
delayed release of this information by directing
Gottlieb and Himan to send more evidence for
testing, even though it was not covered by the order
authorizing certain testing by DSI. Plaintiffs also
allege that Meehan, the DSI lab director, offered to
prepare a report, but Nifong declined because he did
not want to have to provide the report to defense
counsel, and Meehan acquiesced in Nifong’s wish.
(Second Am. Compl. ¶ 802). Plaintiffs further allege
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that Nifong, Gottlieb, and Himan met with Meehan
and DSI’s president, Defendant Clark, on April 21
and May 12, and that during the May 12 meeting,
they agreed to conceal DSI’s findings and prepare a
final report that did not contain the entirety of DSI’s
finding. Plaintiffs allege that they were entitled to a
written report of every test conducted by DSI with
their DNA samples that were provided pursuant to
the NTO, and that Nifong, Gottlieb, and Himan did
not ever provide them with a complete report.
Plaintiffs further allege that the report included a
“non-probative” crime scene fingernail even though
“Crystal Mangum did not contribute to any DNA
found on the fingernail” and that it was included in
the report “solely for purposes of intimidating a
material and critical witness.” (Second Am. Compl.
¶ 769-771). Finally, Plaintiffs allege that after
agreeing to the preparation of a misleading report,
Nifong continued to tell the media that the DNA
results would “favor Mangum’s allegations,” and
sources in Nifong’s office provided false information
to the media indicating that there was a DNA match
with an individual Mangum had identified with 90%
certainty. (Second Am. Compl. ¶ 773-775).
Plaintiffs allege that during the investigation,
Nifong repeatedly stated that there was medical
evidence of an assault. Plaintiffs allege that the
“falsified sections” of the NTO application included a
claim by Gottlieb that “[m]edical records and
interviews that were obtained by a subpoena
revealed the victim had signs, symptoms, and
injuries consistent with being raped and sexually
assaulted vaginally and anally. Furthermore, the
SANE nurse stated the injuries and her behavior
121a
were consistent with a traumatic experience.”
(Second Am. Compl. ¶ 781). Plaintiffs allege that
after Nifong made repeated public statements
claiming that he believed a rape had occurred based
on the medical evidence, Nurse Levicy’s supervisor,
Theresa Arico, gave an interview in which she
references “blunt force trauma” and examination
with a coloposcope, and concluding that “I can
reasonably say these injuries are consistent with the
story she told.” (Second Am. Compl. ¶ 784). Plaintiffs
allege, however, that significant portions of the
Sexual Assault Examination Report (“SAER”) were
not produced until April 5, several weeks after the
March 21 subpoena and subsequent production of
medical records. Plaintiffs allege that in that
intervening time between March 21 and April 5,
“Levicy re-created those portions of the SAER that
were not completed on March 14th after the
[examination] was abandoned.” (Second Am. Compl.
¶ 785). Plaintiffs allege that the information that
Levicy produced to Gottlieb on April 5 included
“what Levicy claims to be a handwritten
transcription of the SANE interview of Mangum,
and several pages containing strike-outs and other
addenda that do not conform to the facts of the
SANE exam, but instead attempted to conform the
SANE exam to what Levicy understood to be the
evidence at the time.” (Second Am. Compl. ¶ 785).
Plaintiffs allege that Levicy falsified the medical
records by fabricating a transcript of her interview
with Mangum “in order to conform the SANE
interview to what Gottlieb reported in his
sensationalized application” for the NTO. (Second
Am. Compl. ¶ 785). Plaintiffs further allege that
Levicy falsified the medical record of the
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examination by revising and annotating Mangum’s
responses to conform them to the evidence police
believed existed at the time. For example, a question
on the form asked if any effort was made to conceal
evidence, and the original “no” was struck through
and “yes” was checked with a handwritten notation
“wiped her off with a rag.” Plaintiffs allege that
Levicy made this revision to conform the SAER with
the fact that a towel containing semen was seized
during the search of 610 N. Buchanan, although it
was later determined that Mangum’s DNA was not
on the towel. (Second Am. Compl. ¶ 785).
Plaintiffs allege that the next day, after
Levicy submitted the SAER with her revisions,
Mangum gave a written statement that was
“remarkably consistent” with the interview
transcript that Levicy had just provided. Plaintiffs
allege that “[t]he falsifications in the SAER were
plainly designed to conceal the fact that Mangum did
not report any of the detail that appeared in
Gottlieb’s application” for the NTO and “were
designed to corroborate the sensationalized version
of Mangum’s account that Gottlieb falsely reported
in his factual sections of the application” for the
NTO. (Second Am. Compl. ¶ 785-786).
Plaintiffs allege that Levicy subsequently met
with Nifong, Gottlieb, Himan, and Wilson and
“repeatedly proffered false testimony that was
clearly designed to fill the chasms in Mangum’s case
and/or to restore Mangum’s glaring credibility
problems.” (Second Am. Compl. ¶ 788). Plaintiffs
allege that Levicy agreed with Nifong, Gottlieb,
Himan, and Wilson that she would testify to forensic
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medical evidence that she did not observe and did
not exist. Plaintiffs also allege that Levicy
“fabricated a forensic medical observation that the
[examination] revealed evidence of penetrating blunt
force trauma.” (Second Am. Compl. ¶ 790). Plaintiffs
allege that Levicy’s supervisor, Arico, “had already
echoed publicly support for this false claim,” even
though there was no evidence of blunt force trauma.
(Second Am. Compl. ¶ 790). Plaintiffs further allege
that after the results of the DNA testing established
no match with any lacrosse team member, Nifong
claimed publicly that he believed condoms were
used, and “[k]nowing this, on January 10, 2007,
Levicy proffered additional fraudulent testimony
that the absence of DNA could be explained by the
use of condoms” even though the examination report
noted repeatedly that condoms were not used.
(Second Am. Compl. ¶ 794-796). Finally, Plaintiffs
allege that while the evidence established that
Mangum was incoherent and potentially suffering
from a “psychotic delusion” on March 14, Levicy
proffered new testimony claiming Mangum “could
always speak articulately” and was “very alert.”
(Second Am. Compl. ¶ 797). However, Plaintiffs
allege that a few days later, after Nifong withdrew
from the case, Levicy attempted a “clarification” and
“stated that she now believed that the absence of any
DNA matching a member of the lacrosse team could
be explained by the fact that the rape ‘didn’t
happen.’” (Second Am. Compl. ¶ 799).
Plaintiffs allege that on April 10, the SBI Lab
report was provided to Plaintiffs and the results
were made public. Plaintiffs allege that on April 11,
a public forum was held and was attended by Nifong
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and Deputy Chief of Police Hodge, who was the
Acting Chief of Police “in the unexplained absence of
Chalmers.” Plaintiffs allege that Hodge, who had
participated in meetings reviewing the status of the
investigation, was asked about the strength of the
case in light of the DNA results, and said “‘I don’t
think we would be here if it wasn’t (a strong case)’
against the Plaintiffs.” (Second Am. Compl. ¶ 809811).
Plaintiffs allege that on April 14, Nifong was
proceeding to indict two team members, Reade
Seligmann and Collin Finnerty, although Gottlieb
and Himan knew that they had very little evidence,
if any, that either of them was even present at the
party at the relevant time. Plaintiffs allege that
Gottlieb and Himan therefore “colluded with Duke
Police officers to compel several team members to
provide the information necessary to place Collin
and Reade at 610 N. Buchanan at some point on
March 13th if not March 14th. Plaintiffs allege that
this included sending an e-mail on April 13 through
Breck Archer’s “duke.edu” e-mail account that
Archer did not send or authorize, which stated “I am
going to the police tomorrow to tell them everything
that I know.” (Second Am. Compl. ¶ 818-819). In
addition, Plaintiffs allege that on the evening of
April 13, Duke Police officers assisted Himan and
Gottlieb in gaining access to the dorm building
where most of the sophomore team members lived.
Plaintiffs allege that Gottlieb and Himan “cornered
team members in their dorms” and asked “who was
(and was not) present at the party.” (Second Am.
Compl. ¶ 821). Plaintiffs allege that they “cornered
Michael Young [who is not a Plaintiff in this case],
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and coaxed him into his room” and questioned him
regarding who was at the party. (Second Am. Compl.
¶ 822). Plaintiffs allege that Duke Police “facilitated
Himan’s and Gottlieb’s entry into one of the dorms,
and then left them there to sneak into other dorm
buildings.” (Second Am. Compl. ¶ 823).
Plaintiffs allege that on April 5, their season
was cancelled, their coach resigned, and President
Brodhead announced the formation of an “Ad Hoc”
committee to investigate the Plaintiffs’ and their
teammates’ past in search of prior bad acts by the
lacrosse team. Plaintiffs allege that the Committee
was given only three weeks so that its report “could
be presented in a nationally televised press
conference prior to the primary, in order to assure
Nifong’s election and the continuation of the case to
trial and convictions.” (Second Am. Compl. ¶ 833).
Plaintiffs allege that “[i]n the absence of evidence of
misconduct, the Chairman directed the manufacture
of evidence that would.” (Second Am. Compl. ¶ 837).
Plaintiffs allege that Defendants Moneta and Bryan
“provided false and misleading statistics and a body
of misleading data for the Committee to use.”
(Second Am. Compl. ¶ 838-844). Plaintiffs allege that
the Committee reached the “preordained public
conclusion” announced the day before the election,
that there was a “pattern” of “deplorable” conduct by
lacrosse team members, and “ratified the premises of
Gottlieb’s sensationalized application” for the NTO.
(Second Am. Compl. ¶ 838, 847, 849). Plaintiffs
allege that Defendant Burness “delivered an advance
copy” of the report to the City so they could “prepare
statements for the press conferences” but did not
126a
provide a copy to Plaintiffs or their teammates.
(Second Am. Compl. ¶ 851).
Plaintiffs allege that Duke employees, at
Steel’s direction, accessed Plaintiffs’ “federally
protected financial records and produced to Durham
Police complete, unredacted reports of all activity in
Plaintiffs’ Duke-issued transaction card accounts
between March 13 and March 14,” without a
warrant or notice to the Plaintiffs or their counsel.
(Second Am. Compl. ¶ 853). Plaintiffs allege that the
records were obtained by Defendants Drummond
and Dawkins and Duke Police Officers Smith and
Stotsenberg, and that Smith and Stotsenberg
delivered the records to Gottlieb on March 31 at
Steel’s directive. Plaintiffs allege that Gottlieb used
the records to ensure that Mangum “would select
three team members whose transaction records were
not inconsistent with having been present at the
party at the relevant time.” (Second Am. Compl.
¶ 857). Plaintiffs allege that Gottlieb gave the
reports to Himan, who gave them to Nifong.
However, Plaintiffs allege that on May 31, Nifong
issued subpoenas ordering production of the Duke
Card Transaction Reports for every member of the
team, even though he had received the reports two
months earlier. (Second Am. Compl. ¶ 863).
Plaintiffs allege that Duke sent a notice to Plaintiffs
and their teammates indicating that “the subpoenas
had been issued, and the protected materials would
be produced pursuant to the subpoenas unless they
obtained a court order quashing the subpoenas.”
(Second Am. Compl. ¶ 864). However, the notice “did
not disclose that all of their Duke Card reports
covering at least the same time period had already
127a
been produced to the State by Duke Police Officers.”
(Second Am. Compl. ¶ 864). In response, Plaintiffs
filed motions to quash the subpoenas and
participated in a hearing at which the subpoenas
were quashed. Plaintiffs allege that Nifong, Himan,
Gottlieb, Smith, Stotsenberg, Drummond and
Dawkins all knew that Duke had previously
provided the same reports sought in the subpoena
and that the subpoena was a fraud.
Plaintiffs also allege that they and their
teammates undertook to register voters for the
November 2006 election, but the Duke “Crisis
Management Team” Defendants (Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, and Haltom)
directed Duke officials to force Plaintiffs and their
teammates to shut down the registration efforts.
Plaintiffs allege that other student groups were
allowed to set up voter registration tables on
campus, but they were denied the right to set up a
table at the stadium during the Homecoming Game.
Plaintiffs allege that in response, they decided to
continue registration as they had in the past by
offering the opportunity to register to vote to
passers-by on campus, without a table or centralized
location. However, after the students began walking
on campus with their voter registration materials,
wearing “Voice Your Choice” t-shirts, they were
stopped by Administrators and Duke Police officers
and were ordered to cease and desist the
registration. Plaintiffs allege that the students were
required to take off their shirts or turn them inside
out. Plaintiffs allege that according to the agents
who stopped them, “the decision to shut down the
registration effort was made at the ‘highest levels’ of
128a
the University’s governing structure.” (Second Am.
Compl. ¶ 886). Plaintiffs further allege that
Defendant Burness made public statements
falsifying the results of an investigation into the
incident. (Second Am. Compl. ¶ 888).
Plaintiffs allege that Duke and the City
conducted internal investigations of their handling
of all of these events, and found no wrongdoing, thus
condoning and ratifying the violations of Plaintiffs’
rights. (Second Am. Compl. ¶ 890). Plaintiffs allege
that Defendant Burness continued to make public
statements that “falsely accused the Plaintiffs and
their teammates of habitual, gross misconduct over
the course of years.” (Second Am. Compl. ¶ 894).
However, Plaintiffs allege that the State Attorney
General subsequently “condemned Nifong and his
coconspirators for their ‘tragic rush to accuse’ and
their ‘failure to verify serious allegations.’” (Second
Am. Compl. ¶ 897). Nifong was disbarred and was
convicted of criminal contempt in connection with
making “false and misleading representations to
the [c]ourt that no one had made any statements
to him relating to the DNA evidence beyond what
was . . . published in the May 12” report, when he
had been conspiring for almost 6 months to conceal
the exonerating DNA evidence. (Second Am. Compl.
¶ 902).
In the present suit, Plaintiffs now assert the
following claims: Count 1: Search and Seizure in
Violation of 42 U.S.C. § 1983 and Conspiracy; Count
2: Search and Seizure in Violation of 42 U.S.C.
§ 1983 and Conspiracy; Count 3: Abuse of Process
and Conspiracy in Violation of 42 U.S.C. § 1983;
129a
Count 4: Deprivation of Property in Violation of 42
U.S.C. § 1983; Count 5: False Public Statements in
Violation of 42 U.S.C. § 1983; Count 6: Manufacture
of False Inculpatory Evidence and Conspiracy in
Violation of 42 U.S.C. § 1983; Count 7: Concealment
of Exculpatory Evidence and Conspiracy in Violation
of 42 U.S.C. § 1983; Count 8: Interfering with Right
to Engage in Political Processes in Violation of 42
U.S.C. § 1983 and Conspiracy; Count 9: Retaliation
in Violation of 42 U.S.C. § 1983 and Conspiracy;
Count 10: Deprivation of the Privileges and
Immunities of North Carolina Citizens in Violation
of 42 U.S.C. § 1983; Count 11: Failure to Prevent
Deprivation of Constitutional Rights in Violation of
42 U.S.C. § 1983; Count 12: Monell Liability for
Violations of 42 U.S.C. § 1983; Count 13:
Supervisory Liability for Violations of 42 U.S.C. §
1983; Count 14: Failure to Train in Violation of 42
U.S.C. § 1983; Count 15: Conspiracy in Violation of
42 U.S.C. § 1983; Count 16: Conspiracy in Violation
of 42 U.S.C. § 1985; Count 17: Failure to Intervene
in Violation of 42 U.S.C. § 1986; Count 18: Common
Law Obstruction of Justice and Conspiracy; Count
19: Common Law Abuse of Process and Conspiracy;
Count 20: Intentional Infliction of Emotional
Distress and Conspiracy; Count 21: Breach of
Contract; Count 22: Invasion of Privacy; Count 23:
Breach of Fiduciary Duty and Aiding and Abetting;
Count 24: Fraud; Count 25: Negligence (Durham
Police); Count 26: Negligent Hiring, Retention,
Supervision, Training and Discipline (Durham
Police); Count 27: Negligent Infliction of Emotional
Distress (Durham Police); Count 28: Negligent
Infliction of Emotional Distress; Count 29:
Negligence (Duke Police); Count 30: Negligence
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(Duke); Count 31: Negligence (SANE); Count 32:
Negligent Hiring, Retention, Supervision, Training
and Discipline (SANE); Count 33: Negligent
Infliction of Emotional Distress (SANE); Count 34:
Negligence (DSI); Count 35: Negligent Supervision,
Hiring, Training, Discipline, and Retention (DSI);
Count 36: Negligent Infliction of Emotional Distress
(DSI); Count 37: Negligence (Duke Police); Count 38:
Negligent Supervision (Duke Police); Count 39:
Negligent Infliction of Emotional Distress (Duke
Police); Count 40: Negligent Entrustment (Duke
Police); Count 41: Violations of Article I and Article
IX of the North Carolina Constitution and
Conspiracy. In considering these various Motions to
Dismiss, the Court will first outline the applicable
legal standard for considering motions to dismiss,
and will then apply that standard to analyze each of
the 41 claims raised by Plaintiffs in this case.
II.
STANDARD OF REVIEW ON MOTIONS
TO DISMISS
In reviewing a Motion to Dismiss for failure to
state a claim pursuant to Rule 12(b)(6), the Fourth
Circuit has directed that “[w]e ‘take the facts in the
light most favorable to the plaintiff,’ but ‘we need not
accept the legal conclusions drawn from the facts,’
and ‘we need not accept as true unwarranted
inferences,
unreasonable
conclusions,
or
arguments.’” Giarratano v. Johnson, 521 F.3d 298,
302, 304 (4th Cir. 2008) (quoting Eastern Shore
Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175,
180 (4th Cir. 2000)). In Ashcroft v. Iqbal, the
Supreme Court addressed the appropriate standard
for analyzing motions to dismiss pursuant to Rule
131a
12(b)(6), noting that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” 129 S. Ct. 1937,
1949,173 L. Ed. 2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974, 167 L. Ed. 2d 929 (2007)). The Court in
Iqbal laid out “two working principles” for
considering Rule 12(b)(6) motions to dismiss. First,
the Court in Iqbal noted that “the tenet that a court
must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Id. Thus, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements
of a cause of action’” or “‘naked assertions’ devoid of
‘further factual enhancement’” will not do. Id. In this
regard, the Iqbal Court noted that Federal Rule of
Civil Procedure 8(a)(2) requires that a complaint
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief,” but
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 1949, 1950. Thus, in considering a Rule
12(b)(6) Motion to Dismiss, courts may begin by
“identifying pleadings that, because they are no
more than conclusions, are not entitled to the
assumption of truth.” Id. at 1950.
Second, the Iqbal Court noted that “only a
complaint that states a plausible claim for relief
survives a motion to dismiss,” and therefore courts
must determine whether the facts actually pled in
the complaint show that the pleader is entitled to
relief. Id. Thus, “[w]hen there are well-pleaded
factual allegations, a court should assume their
132a
veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Id. “A claim has
facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility
and plausibility of entitlement to relief.’” Id. at 1949
(internal citations omitted). Thus, dismissal of a
complaint is proper where plaintiffs’ factual
allegations fail to “produce an inference of liability
strong enough to nudge the plaintiff’s claims ‘across
the line from conceivable to plausible.’” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 256 (4th Cir. 2009) (citing Iqbal, 129 S. Ct.
at 1952 (internal quotation omitted)).
In considering claims that are asserted under
state law, the Court “must rule as the North
Carolina courts would, treating decisions of the
Supreme Court of North Carolina as binding, and
‘departing from an intermediate court’s fully
reasoned holding as to state law only if ‘convinced’
that the state’s highest court would not follow that
holding.’” Iodice v. United States, 289 F.3d 270, 275
(4th Cir. 2002). However, pleading standards are a
matter of procedural law governed in this Court by
federal, not state, law. See Jackson v. Mecklenburg
County, N.C., No. 3:07-cv-218, 2008 WL 2982468, at
*2 (W.D.N.C. July 30, 2008) (“North Carolina
substantive law applies to the elements of Plaintiffs’
133a
state law claims but the Federal Rules of Civil
Procedure govern procedural law and North
Carolina ‘pleading requirements, so far as they are
concerned with the degree of detail to be alleged, are
irrelevant in federal court even as to claims arising
under state law.’” (quoting Andresen v. Diorio, 349
F.3d 8, 17 (1st Cir. 2003) (citations omitted))).
Therefore, the Iqbal procedural pleading standard
applies to both federal and state law claims in this
case.
III.
ANALYSIS
In analyzing the various Motions to Dismiss,
the Court will consider each of Plaintiffs’ alleged
claims to determine whether Plaintiffs have stated a
claim under the standards outlined above and under
the applicable state and federal law.9 The Court will
9 The Court notes that Plaintiffs previously filed a
Motion to Strike [Doc. #73] seeking to strike certain
attachments filed by various Defendants with their respective
Motions to Dismiss the prior Complaint. In the Order [Doc.
#135] granting Plaintiffs leave to file their Second Amended
Complaint, the Court terminated the Defendants’ original
Motions to Dismiss and Plaintiffs’ Motion to Strike as moot.
Plaintiffs did not renew their original Motion to Strike and no
such Motion is currently pending before this Court.
Furthermore, there would be no need to strike the exhibits
submitted here because a Motion to Strike under Rule 12(f)
must be directed to a pleading, not an exhibit to a brief.
However, to the extent Plaintiffs raise objections to Defendants’
exhibits, the Court notes that in reviewing the Motions to
Dismiss the Court has not considered any items that are not
part of or intrinsic to the Second Amended Complaint. The
Court notes that to the extent that Defendants have submitted
charts outlining their briefing by count, those exhibits simply
relate to the briefing and do not add any matter outside of the
Complaint. In addition, to the extent that the Defendants have
134a
consider each of the counts individually, in the order
in which they are asserted. As a result, the Court
acknowledges that there is some duplication of
analysis, except where it can be avoided, but the
analysis has been organized in this way in order to
ensure that each claim is separately addressed.
Count 1:
Search and Seizure in Violation of
42 U.S.C. § 1983 and Conspiracy,
asserted against Nifong, Gottlieb,
Himan, Levicy, Arico, the City,
Duke, and Duke Health10
Count 1 is a claim asserted under 42 U.S.C.
§ 1983, which prohibits any person, acting under
color of state law, from depriving an individual of
their rights secured under the Constitution and laws
of the United States. Plaintiffs assert the § 1983
claim in Count 1 for alleged violations of Plaintiffs’
Fourth and Fourteenth Amendment constitutional
submitted the “Duke Card Terms and Conditions” and state
court orders directing the State to pay for DSI’s services, the
Court has not and need not consider those items in analyzing
the Motions to Dismiss.
Plaintiffs have asserted this claim against the
individuals in both their official and individual capacities.
However, Plaintiffs agree that the “official capacity” claims are
appropriately treated as claims against the City. Claims
against the City under § 1983 require additional allegations
based on the Supreme Court’s decision in Monell v. Department
of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38,
56 L. Ed. 2d 611 (1978), and Plaintiffs have made those
allegations as part of Count 12. Therefore, the “official
capacity” claims are considered as part of Count 12. The Court
as part of Count 12 also considers Plaintiffs’ contention that the
claims against Nifong are brought “in his Individual Capacity
and Official Capacity with respect to the City of Durham.”
10
135a
rights in connection with the Nontestimonial Order
(“NTO”). Plaintiffs allege that the NTO “compelled
the Plaintiffs to surrender themselves to the
Durham Police and submit to cheek swabbings to
obtain DNA samples, to submit to ‘mug shot’
photographing of their fact, and to disrobe for
purposes of close physical inspection and
photographing of their bodies.” (Second Am. Compl.
¶ 908). Plaintiffs contend that the NTO thus effected
a search and seizure under the Fourth and
Fourteenth Amendments. Plaintiffs allege that
Gottlieb, Himan, and Nifong agreed to seek the
NTO, knowing that probable cause did not exist to
believe that any of the offenses listed in the NTO
application had been committed, and that reasonable
grounds did not exist to suspect that Plaintiffs
committed any such offenses. Plaintiffs allege that
Nifong, Gottlieb, and Himan therefore “conspired to
and did fabricate a false affidavit that would be
facially sufficient” to obtain the NTO. (Second Am.
Compl. ¶ 910). Plaintiffs allege that the fabricated
statements were material to the issuance of the
NTO, and that no reasonable officer would have
believed that the true facts provided sufficient
grounds for the NTO directed to Plaintiffs. With
respect to Defendants Levicy, Arico, Duke, and Duke
Health11, Plaintiffs allege that these Defendants
“agreed to act in concert with Nifong, Gottlieb, and
Himan by falsifying Mangum’s SAER to harmonize
it with the fabricated [NTO] Affidavit, and,
subsequently, further falsified the SAER to
In the substance of Count 1, Plaintiffs also refer to
Defendants Manly and Dzau. However, they are not listed as
Defendants against whom Count 1 is asserted. Therefore,
Count 1 is not considered as to Defendants Manly and Dzau.
11
136a
harmonize it with Mangum’s written statement and
evidence they hoped would emerge from the DNA
testing.” (Second Am. Compl. ¶ 913).12
“‘The Fourth Amendment [applicable to the
states through the Fourteenth Amendment]
prohibits law enforcement officers from making
unreasonable seizures, and seizure of an individual
effected without probable cause is unreasonable.”
Miller v. Prince George’s County, 475 F.3d 621, 627
(4th Cir. 2007) (quoting Brooks v. City of WinstonSalem, 85 F.3d 178, 183 (4th Cir. 1996)). Moreover,
when police officers effect a “seizure” of a person
pursuant to a warrant, the officers are still liable for
violations of the Fourth Amendment if the officers
“intentionally lie in warrant affidavits, or recklessly
include or exclude material information known to
them.” Id. at 630 (citing Franks v. Delaware, 438
U.S. 154, 155-56, 98 S. Ct. 2674, 2675, 57 L. Ed. 2d
667 (1978) (holding that a defendant in a criminal
12 As part of Count 1, which relates to the NTO,
Plaintiffs also assert that “Stotsenberg, Smith, at the direction
of Graves and Dean, pried into and searched through Plaintiffs’
private, password protected email accounts, their private
banking records, their private educational records, among other
things, all without issuance of any notice, subpoena or warrant,
or other legal process, and in the absence of probable cause or
reasonable suspicion.” (Second Am. Compl. ¶ 915). However,
Stotsenberg, Smith, Graves, and Dean are not named as
Defendants in Count 1, and it is unclear how this contention
relates to the remainder of Count 1. To the extent that
Plaintiffs may be referring to their “Duke Card” records, the
Court concludes that Plaintiffs do not have a constitutionallyprotected expectation of privacy in their “Duke Card” records.
In any event, because Plaintiffs have not brought Count 1
against Stotsenberg, Smith, Graves, and Dean, the Court will
not consider this contention further.
137a
proceeding may raise a constitutional challenge to
searches conducted pursuant to a warrant if “a false
statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the
affiant in the warrant affidavit” and if the offending
information was essential to the probable cause
determination)). Thus, “[a]n investigation need not
be perfect, but an officer who intentionally or
recklessly puts lies before a magistrate, or hides
facts from him, violates the Constitution unless the
untainted facts themselves provide probable cause.”
Id. at 630-31; Brooks v. City of Winston-Salem, 85
F.3d 178, 183-84 (4th Cir. 1996). With regard to
omissions, the Fourth Circuit has noted that “[a]n
affiant cannot be expected to include in an affidavit
every piece of information gathered in the course of
an investigation,” but a facially sufficient affidavit is
still subject to challenge if it includes “omissions that
are designed to mislead, or that are made in reckless
disregard of whether they would mislead, the
magistrate.” United States v. Colkley, 899 F.2d 297,
300- 01 (4th Cir. 1990) (emphasis in original). In this
context, “‘reckless disregard’ can be established by
evidence that an officer acted ‘with a high degree of
awareness of [a statement’s] probable falsity,’ that
is, ‘when viewing all the evidence, the affiant must
have entertained serious doubts as to the truth of his
statements or had obvious reasons to doubt the
accuracy of the information he reported.’” Miller, 475
F.3d at 627 (quoting Wilson v. Russo, 212 F.3d 781,
788 (3d Cir. 2000)). Likewise, as to omissions,
“‘reckless disregard’ can be established by evidence
that a police officer ‘failed to inform the judicial
officer of facts [he] knew would negate probable
cause.’” Id. (quoting Beauchamp v. City of
138a
Noblesville, Inc., 320 F.3d 733, 743 (7th Cir. 2003)).
However, “[a] plaintiff’s ‘allegations of negligence or
innocent mistake’ by a police officer will not provide
a basis for a constitutional violation.” Id. at 627-28
(quoting Franks v. Delaware, 438 U.S. 154, 171, 98
S. Ct. 2674, 2684, 57 L. Ed. 2d 667).
In this case, Plaintiffs allege that they were
unconstitutionally seized when they were required to
appear and surrender themselves at the Durham
Police station, and submit to cheek swabbings to
obtain DNA samples, ‘mug shot’ photographing, and
“disrob[ing] for purposes of close physical inspection
and photographing of their bodies” pursuant to the
NTO. (Second Am. Compl. ¶ 908). The NTO was
issued pursuant to North Carolina General Statute
§ 15A- 271 to § 15A-282. Under these statutes, an
NTO may be issued by a judge upon an affidavit
sworn to before the judge establishing “[t]hat
there is ‘probable cause’ to believe that a felony
offense . . . has been committed[,] that there are
‘reasonable grounds’ to suspect that the person
named or described in the affidavit committed the
offense[,] and that the results of specific
nontestimonial identification procedures will be of
material aid in determining whether the person
named in the affidavit committed the offense.” N.C.
Gen. Stat. § 15A-273. An NTO includes
“identification by fingerprints, palm prints,
footprints, measurements, blood specimens, urine
specimens, saliva samples, hair samples, or other
reasonable physical examination, . . . photographs,
and lineups or similar identification procedures
requiring the presence of a suspect.” N.C. Gen. Stat.
§ 15A-271.
139a
In their Motions to Dismiss, Defendants
contend that this NTO process itself authorizes a
search and seizure of citizens on “reasonable
suspicion” rather than “probable cause” and that
such a showing is sufficient under the Fourth
Amendment. Defendants further contend that the
NTO in the present case was issued by a state
magistrate judge upon a finding of “probable cause”
to believe that a felony offense had been committed
and “reasonable grounds” to suspect that the
individuals named in the affidavit committed the
offense, and that this Court should defer to the
magistrate judge’s finding. See Simmons v. Poe, 47
F.3d 1370, 1378 (4th Cir. 1995). In addition,
Defendants contend that the affidavit for the NTO
would support a finding of probable cause, even if
the challenged evidence is not considered. Id.
(“[E]ven if an affidavit supporting a search warrant
is based in part on some illegal evidence, such
inclusion of illegal evidence does not taint the entire
warrant if it is otherwise properly supported by
probable cause.”). Finally, Defendants raise a
“qualified
immunity”
defense,
noting
that
“[g]overnment officials performing discretionary
functions are entitled to qualified immunity from
liability for civil damages to the extent that ‘their
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.’” Washington v. Wilmore, 407
F.3d 274, 281 (4th Cir. 2005) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738,
73 L. Ed. 2d 396 (1982)). Under the doctrine of
qualified immunity, even if the violation of a
constitutional right is established on the facts
alleged, “courts must consider whether the right was
140a
clearly established at the time such that it would be
clear to an objectively reasonable officer that his
conduct violated that right.” Brown v. Gilmore, 278
F.3d 362, 367 (4th Cir. 2002).13
For their part, Plaintiffs allege that the NTO
procedure under state law is unconstitutional insofar
as it could be construed as authorizing searches and
seizures, which could include blood samples, urine
samples, saliva samples and physical examinations,
on a showing of less than full probable cause.
Plaintiffs further allege that even if the statute itself
is constitutional, the NTO in this case - which
effected a search and seizure of all 46 lacrosse team
members - violated the Fourth Amendment because
it was not supported by probable cause or even by
“reasonable grounds.” Finally, Plaintiffs contend
that the NTO resulted in an unconstitutional seizure
because the NTO was issued based on an affidavit
that was intentionally false and misleading and that
would not have supported issuance of the NTO if the
13 In determining whether a governmental official is
entitled to qualified immunity, the Court must first decide
“‘whether a constitutional right would have been violated on
the facts alleged.’” Brown v. Gilmore, 278 F.3d 362, 367 (4th
Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200, 121 S.
Ct. 2151, 2155, 150 L. Ed. 2d 272 (2001)). If the violation of the
right is established, “courts must consider whether the right
was clearly established at the time such that it would be clear
to an objectively reasonable officer that his conduct violated
that right.” Id. However, pursuant to Pearson v. Callahan,
courts are “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” 129 S. Ct. 808, 818, 172 L. Ed.
2d 565 (2009).
141a
false and
considered.
misleading
information
were
not
Having considered all of these contentions, the
Court concludes that Plaintiffs have adequately
alleged a seizure and a search of their person
implicating their rights under the Fourth
Amendment. See United States v. Dionisio, 410 U.S.
1, 8, 93 S. Ct. 764,769, 35 L. Ed. 2d 67 (1973) (noting
that “the obtaining of physical evidence from a
person involves a potential Fourth Amendment
violation at two different levels - the ‘seizure’ of the
‘person’ necessary to bring him into contact with
government agents . . . and the subsequent search
for and seizure of the evidence”).14 In addition,
Plaintiffs have raised substantial questions
regarding the constitutionality of the searches and
seizures effected pursuant to the NTO in this case,
bothas to the procedure that was followed and the
scope of the NTO that was entered. In considering
the NTO process, the Court notes that the North
Carolina state court decisions and interpretations of
the NTO process appear conflicting. On one hand,
the North Carolina Supreme Court has recognized
that “[t]he invasion of a person’s body to seize blood,
saliva, and hair samples is the most intrusive type of
The Court notes that in addition to the “seizure”
involved in being compelled to appear at the police station,
Plaintiffs have raised a Fourth Amendment challenge to the
“search” alleged in this case, which in addition to DNA
sampling and “mug shot” photographing, also required them to
disrobe for close physical examination, which they contend
invaded a “reasonable expectation of privacy” and went beyond
what “a person knowingly exposes to the public.” Katz v.
United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed.
2d 576 (1967).
14
142a
search; and a warrant authorizing the seizure of
such evidence must be based upon probable cause to
believe the blood, hair, and saliva samples constitute
evidence of an offense or the identity of a person who
participated in the crime.” State v. Grooms, 353 N.C.
50, 73, 540 S.E.2d 713, 728 (2000); see also State v.
Welch, 316 N.C. 578, 585, 342 S.E.2d 789, 793 (1986)
(holding that “[s]ince the withdrawal of a blood
sample
is
subject
to
fourth
amendment
requirements, a search warrant must be procured
before a suspect may be required to submit to such a
procedure unless probable cause and exigent
circumstances exist that would justify a warrantless
search”). However, on the other hand, the state
courts have also indicated that “a nontestimonial
identification order authorized by article 14 of
chapter 15A of the General Statutes of North
Carolina is an investigative tool requiring a lower
standard of suspicion that is available for the limited
purpose of identifying the perpetrator of a crime.”
Grooms, 353 N.C. at 73, 540 S.E.2d at 728; see also
State v. Pearson, 356 N.C. 22, 28, 566 S.E.2d 50, 54
(2002) (concluding that the “reasonable grounds”
standard is “similar to the reasonable suspicion
standard applied to brief detentions” under Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968)). Thus, it is unclear whether North Carolina
courts would interpret the state NTO statutes as
authorizing a search and seizure, including seizure
of blood, hair, and saliva samples, on less than a full
showing of probable cause.15 It is also unsettled
The Court notes that there is no question, even under
the NTO procedure, that there must be probable cause to
believe that an offense has been committed. The question is
only with respect to whether there must also be probable cause
15
143a
whether such an interpretation would render the
state NTO statutes unconstitutional, at least as
applied in some instances. This uncertainty is a
product of unsettled U.S. Supreme Court holdings
and dicta in this area. In this regard, the U.S.
Supreme Court in Davis v. Mississippi held that the
Fourth Amendment applies when police require
citizens to come to a police station for fingerprinting,
but the Supreme Court left open the possibility that
in the “unique nature of the fingerprinting process”
the requirements of the Fourth Amendment could be
met by “narrowly circumscribed procedures for
obtaining, during the course of a criminal
investigation, the fingerprints of individuals for
whom there is no probable cause to arrest.” 394 U.S.
721, 727-28, 89 S. Ct. 1394, 1387-98, 22 L. Ed. 2d
676 (1969). However, the Supreme Court has not
determined whether or when such “narrowly
circumscribed procedures” could be used, although in
Davis this possibility was limited to fingerprinting,
and did not include blood sampling or other more
intrusive searches. Cf. Schmerber v. California, 384
U.S. 757, 770, 86 S. Ct. 1826, 1835, 16 L. Ed. 2d 908
(1966) (holding, with respect to blood sampling, that
“search warrants are ordinarily required for
searches of dwellings, and absent an emergency, no
less could be required where intrusions into the
human body are concerned”); Dunaway v. New York,
442 U.S. 200, 211-13, 99 S. Ct. 2248, 2256-57, 60 L.
Ed. 2d 824 (1979) (noting that Terry v. Ohio allows
only narrowly-defined intrusions absent a showing of
to believe that the subject of the order committed the offense or
probable cause to believe that evidence of the crime will be
found by conducting the search, rather than a lesser showing of
only “reasonable suspicion.”
144a
probable cause, and concluding that “any ‘exception’
that could cover a seizure as intrusive as that in this
case would threaten to swallow the general rule that
Fourth Amendment seizures are ‘reasonable’ only if
based on probable cause”). In a later case, the
Supreme Court acknowledged that some states, in
reliance on the suggestion in Davis, have “enacted
procedures for judicially authorized seizures for the
purpose of fingerprinting,” but the Supreme Court
noted that “state courts are not in accord on the
validity of these efforts to insulate investigative
seizures from Fourth Amendment invalidation,” and
the Supreme Court declined to reach any further
consideration of that issue. Hayes v. Florida, 470
U.S. 811, 817, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d
705 (1985).
However, this Court need not resolve all of
these unsettled issues at this stage in the present
case, because even if the procedure and scope of the
NTO process would otherwise pass constitutional
muster, here Plaintiffs have asserted a claim that
the affidavit submitted in support of the NTO
application was intentionally and recklessly false
and misleading. In response, Defendants raise
extensive
factual
contentions,
with
factual
comparison charts, to dispute these allegations and
to demonstrate that probable cause existed even if
the allegedly false statements are removed and the
material omissions are included. This analysis
includes extensive parsing of pieces of the Second
Amended Complaint, as well as contentions by
Himan as to what information he provided to Nifong,
and contentions by Gottlieb and the City as to what
information Mangum provided to Gottlieb and
145a
Himan during her interviews. However, the analysis
suggested by Defendants requires factual analysis
beyond the allegations in the Second Amended
Complaint, and the cases cited by the Defendants in
support of this analysis involve summary judgment
determinations, not determinations on a motion to
dismiss. Therefore, having considered the parties’
contentions in this regard, the Court finds that this
parsing of the facts, and certainly any consideration
of Defendants’ factual contentions in response, is
more appropriate at summary judgment after an
opportunity for discovery, when the factual record is
before the Court for consideration. At this stage in
the case, the Court simply concludes that where
officers deliberately or recklessly supply false or
misleading information to a magistrate judge to
support a warrant application, as alleged in the
present case, the officers may be liable under § 1983
for violation of an individual’s Fourth Amendment
rights, if their actions result in the seizure of an
individual without probable cause.16 Moreover, the
Court concludes that there is no question that these
rights were clearly established, and no reasonable
official could have believed that it was permissible to
deliberately or recklessly create false or misleading
evidence to present to a magistrate to effect a
citizen’s seizure. See Miller, 475 F.3d at 631-32
(“[T]he Supreme Court has long held that a police
officer violates the Fourth Amendment if, in order to
The Court acknowledges, as discussed above, the
unsettled law regarding whether the search and seizure
challenged here could be upheld on a showing of less than full
probable cause. The Court will allow the parties to address that
issue further at summary judgment. However, the Court
concludes that there are sufficient allegations to state a
plausible claim in order to go forward at this stage.
16
146a
obtain a warrant, he deliberately or ‘with reckless
disregard for the truth’ makes material false
statements or omits material facts. . . . No
reasonable police officer . . . could believe that the
Fourth Amendment permitted such conduct.”
(internal citations omitted)); Brooks, 85 F.3d at 18384.17 Thus, the Court finds that, taking the
allegations as true, Plaintiffs have alleged plausible
Fourth Amendment claims as set out in Count 1,
based on allegations of deliberate or reckless
submission of false and misleading evidence, which
require at least some discovery so that Plaintiffs’
claims and Defendants’ qualified immunity defense
can be assessed on a factual record beyond just the
allegations in the Second Amended Complaint.
However, the Court must still consider
whether Plaintiffs have sufficiently stated a claim as
to each of the particular Defendants against whom
this Count is asserted. In considering this issue, the
Court notes that this claim is first asserted against
Defendants Himan and Gottlieb. As to these
Defendants, Plaintiffs allege that Himan and
Gottlieb were directly involved in the intentional and
reckless fabrication of evidence that resulted in their
seizure pursuant to the NTO, and in the
perpetuation of that violation by continued
misconduct directed toward the Plaintiffs after the
NTO was issued. Based on the factual allegations set
The Court notes that in the context of a search or
seizure conducted pursuant to a warrant, qualified immunity is
analogous to the “good faith” exception to the exclusionary rule
applied in criminal cases under United States v. Leon, 468 U.S.
897, 922-23, 104 S. Ct. 3405, 3420-21, 82 L. Ed. 2d 677(1984).
See Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092,
1098, 89 L. Ed. 2d 271 (1986).
17
147a
out in the Second Amended Complaint, the Court
concludes that there are sufficient allegations, if
true, to state a plausible § 1983 claim against
Defendants Himan and Gottlieb for alleged knowing
or reckless presentation of false or misleading
evidence that effected a seizure and search of
Plaintiffs pursuant to the NTO without probable
cause. Of course, Plaintiffs will ultimately be
required to present evidence to establish that the
Defendants engaged in this alleged conduct, and
Defendants will be entitled to present evidence to
dispute these allegations. Likewise, Himan and
Gottlieb will be entitled to present their qualified
immunity defense on a motion for summary
judgment, for consideration on the factual record.
However, at this stage, as noted above, the Court
concludes that at the time of the alleged conduct, it
was clearly established that an officer’s fabrication of
evidence before a magistrate judge to effect a search
and seizure of a citizen without probable cause
would violate that citizen’s constitutional rights.
Therefore, the Motions to Dismiss will be denied as
to Defendants Gottlieb and Himan.
With respect to Defendants Levicy and Arico,
these Defendants contend that they are not liable
under § 1983 because they were not acting “under
color of state law” and because any alleged
constitutional violation was attributable to Nifong,
Gottlieb, and Himan. “[T]he under-color-of-state-law
element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or
wrongful.’” American Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d
130 (1999) (internal citations omitted). Thus
148a
“the party charged with the deprivation must
be a person who may fairly be said to be a state
actor. . . . because he is a state official, because he
has acted together with or has obtained significant
aid from state officials, or because his conduct is
otherwise chargeable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct.
2744, 2754, 73 L. Ed. 2d 482 (1982). “‘Under th[e
state-action or color-of-law] doctrine, we ‘insist []’ as
a prerequisite to liability ‘that the conduct allegedly
causing the deprivation of a federal right be fairly
attributable to the State.’ By doing so, we maintain
the Bill of Rights as a shield that protects private
citizens from the excesses of government, rather
than a sword that they may use to impose liability
upon one another.’” Phillips v. Pitt County Mem.
Hosp., 572 F.3d 176, 181 (4th Cir. 2009) (quoting
Holly v. Scott, 434 F.3d 287, 291, 292 (4th Cir. 2006)
(“Statutory and common law, rather than the
Constitution, traditionally govern relationships
between private parties.”)).
“[P]rivate parties may theoretically be sued
under § 1983 using several theories, labeled as
‘symbiotic relationship; public function; close or joint
nexus;
joint
participation;
and
pervasive
entwinement.’” Id. at 181 n.6 (citation omitted); see
also Jackson v. Pantazes, 810 F.2d 426, 429 (4th Cir.
1987) (recognizing potential § 1983 liability “where a
private party and a public official act jointly to
produce the constitutional injury”). To the extent
that a § 1983 claim is based on an alleged “joint
participation” or “conspiracy” between private actors
and public actors, a bare assertion of a “conspiracy”
is insufficient, and a plaintiff must plead enough
149a
factual matter to plausibly suggest that an
agreement was made to deprive them of their
constitutional rights. See Howard v. Food Lion, Inc.,
232 F. Supp. 2d 585, 597 (M.D.N.C. 2002) (holding
that in bringing a conspiracy claim under § 1983, the
plaintiff “must allege both a mutual understanding
to achieve some unconstitutional action reached by
the private and state defendants and some factual
assertions suggesting a meeting of the minds,” and
that “[w]hen a complaint contains merely a vague
allegation of conspiracy, it cannot withstand a
motion to dismiss”); see also Franklin v. Fox, 312
F.3d 423, 445 (9th Cir. 2002) ( “To be liable as a coconspirator, a private defendant must share with the
public entity the goal of violating a plaintiff’s
constitutional rights.”). Moreover, courts have held
that “provision of background information to a police
officer does not by itself make [a private actor] a
joint participant in state action under Section 1983.”
Ginsberg v. Healey Car & Truck Leasing, Inc., 189
F.3d 268, 272 (2nd Cir. 1999) (citing Benavidez v.
Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“The
mere furnishing of information to police officers does
not constitute joint action under color of state law
which renders a private citizen liable under § [ ]
1983. . . .”); Butler v. Goldblatt Bros., Inc., 589 F.2d
323, 327 (7th Cir. 1978) (granting summary
judgment to private defendant on Section 1983 claim
because defendant “did [nothing] more than supply
information to police officers who then acted on their
own initiative in arresting [plaintiff]”); see also
Moldowan v. City of Warren, 578 F.3d 351, 399 (6th
Cir. 2009); King v. Massarweh, 782 F.2d 825, 828-29
(9th Cir. 1986); Arnold v. IBM Corp., 637 F.2d 1350,
1356-57 (9th Cir. 1981). Thus, to be acting “under
150a
color of state law” based on joint participation, the
“private action must have a ‘sufficiently close nexus’
with the state [so] that the private action ‘may be
fairly treated as that of the State itself.’” DeBauche
v. Trani, 191 F.3d 499, 507 (4th Cir. 1999) (citation
omitted).
In the present case, Plaintiffs allege generally
that Levicy and Arico were acting under color of
state law. (Second Am. Compl. ¶ 905). However, a
conclusory allegation that an individual or entity
was acting “under color of state law” is not sufficient,
and Plaintiffs must instead plead specific facts to
survive a motion to dismiss. In considering whether
Plaintiffs have pled sufficient facts with respect to
Levicy, the Court notes that Plaintiffs contend that
Levicy participated in the NTO process and in the
subsequent “cover-up” of the constitutional
violations in the NTO proceeding. Plaintiffs allege
that Levicy had several meetings and interviews
with Gottlieb, Himan, and Nifong, and that during
those meetings she “repeatedly proffered false
testimony that was clearly designed to fill the
chasms of Mangum’s case and/or restore Mangum’s
glaring credibility problems,” and that this included
altering forms and evidence as needed to fit the
investigators’ case. (Second Am. Compl. ¶ 788; 780797). Based on those meetings, Plaintiffs allege that
Levicy “agreed to act in concert with Nifong,
Gottlieb, and Himan by falsifying Mangum’s SAER
to harmonize it with the fabricated [NTO] Affidavit,
and, subsequently, further falsified the SAER to
harmonize it with Mangum’s written statement and
evidence they hoped would emerge from the DNA
testing.” (Second Am. Compl. ¶ 913). As noted in the
151a
Factual Background, Plaintiffs set out specific
allegations that Levicy produced falsified medical
records and proffered false testimony to corroborate
the information in the NTO application.
Having considered these contentions, the
Court concludes that Plaintiffs have alleged
sufficient facts to state a claim against Levicy for her
alleged role in the claimed constitutional violations.
Although Levicy was not employed by the City,
Plaintffs’ allege that she shared the goal of violating
Plaintiffs’ constitutional rights, and that she agreed
with Nifong, Gottlieb, and Himan to provide the
false evidence to them as part of this agreement.
These allegations are sufficient to give notice as to
how she is alleged to have participated in the
conspiracy, and are sufficient to allege action “under
color of state law” at this stage in the case. That
issue will, however, be subject to further review on a
motion for summary judgment to determine whether
sufficient evidence exists to support this claim as to
Levicy.
However, as to Defendant Arico, Plaintiffs do
not allege facts specifically as to Arico to support the
conclusion that she entered into an agreement with
Gottlieb, Himan, or Nifong to provide false evidence
in connection with the NTO and violate Plaintiffs’
constitutional rights. The only specific allegation as
to Arico is that she gave an interview to a newspaper
reporter regarding the sexual assault examination.
(Second Am. Compl. ¶ 784). This allegation against
Arico is insufficient to state a plausible claim that
Arico entered into a conspiracy with Nifong,
Gottlieb, and Himan and was acting under color of
152a
state law when she gave the interview, or that the
interview alone was sufficient to allege joint
participation in the alleged violation of Plaintiffs’
constitutional rights.18 Therefore, the Motion to
Dismiss will be granted with respect to Count 1 as
to Defendant Arico. Cf. Howard, 232 F. Supp. 2d at
597 (dismissing § 1983 claim against private party
where the complaint failed to plead any facts
suggesting that the private party and the
government actor reached a meeting of the minds).
Finally, the Court notes that all of the “official
capacity” claims and the claims against the City,
Duke, and Duke Health will be considered as part of
Count 12, since Plaintiffs must allege a separate
basis for imputing liability to these Defendants, and
those allegations are made by Plaintiffs as part of
Count 12. Therefore, with respect to Count 1, the
Court concludes that the Motions to Dismiss will be
granted in part and denied in part. Specifically, the
Court concludes that Count 1 will go forward as to
Defendants Nifong,19 Gottlieb, Himan, and Levicy in
18 As discussed in greater detail below with respect to
the “supervisory liability” claims, § 1983 liability is based on
each individual Defendant’s own misconduct, not vicarious
liability based on misconduct of subordinates. In this case,
Plaintiffs have set out allegations that state a plausible claim
that Levicy was acting under color of state law, but that does
not impute liability or “state action” to Arico, and Plaintiffs
have not set out specific, non-conclusory allegations as to Arico
that would state a plausible claim for joint activity or
conspiracy between Arico and Nifong, Gottlieb, or Himan.
The Court notes that Defendant Nifong has not filed
a Motion to Dismiss, so the conclusions here as to Count 1 are
without prejudice to any further determination as to Defendant
19
153a
their individual capacities. However, this claim will
be dismissed as to Defendant Arico. In addition, to
the extent that this claim is asserted against Duke,
Duke Health, the City, or the individual Defendants
in their “official capacities,” those claims will be
considered as part of Count 12.
Count 2:
Search and Seizure in Violation of
42 U.S.C. § 1983 and Conspiracy,
asserted against Nifong, Gottlieb,
Himan, Levicy, Arico, Stotsenberg,
Smith, and the “Day Chain of
Command” (Best, Smith, Fleming,
Cooper, Humphries, Dean, Graves,
Dawkins, Trask, Brodhead, and
Steel)20
In Count 2, Plaintiffs assert a claim under 42
U.S.C. § 1983 for violation of Plaintiff McFadyen’s
Fourth and Fourteenth Amendment rights in
connection with the search of his dorm room on
March 27, 2006. Plaintiffs allege that “Gottlieb,
Himan and Nifong, Levicy, and Arico acting
individually and in concert, initiated legal process
Nifong after his current status as a Defendant is clarified by
Plaintiffs. See supra note 1.
Plaintiffs have asserted this claim against the
individuals in both their official and individual capacities.
However, Plaintiffs agree that the “official capacity” claims are
appropriately treated as claims against the City. Claims
against the City under § 1983 require additional allegations
based on the Supreme Court’s decision in Monell v. Department
of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38,
56 L. Ed. 2d 611 (1978), and Plaintiffs have made those
allegations as part of Count 12. Therefore, the “official
capacity” claims are considered as part of Count 12.
20
154a
directed at McFadyen in the form of a Search
Warrant Application.” (Second Am. Compl. ¶ 920).
Plaintiffs further allege that Gottlieb, Himan, and
Nifong obtained the search warrant for McFadyen’s
room and vehicle, and that pursuant to that
warrant, Gottlieb and Himan searched his dorm
room. Plaintiffs allege that at the time Gottlieb,
Himan, and Nifong agreed to seek the search
warrant, probable cause did not exist, and therefore
Gottlieb, Himan, and Nifong “conspired to fabricate
and did fabricate a false affidavit that would be
facially sufficient to obtain the Warrant.” (Second
Am. Compl. ¶ 924). Plaintiffs allege that “the
Warrant’s material factual assertions were all
fabrications” and that “in the absence of the
fabricated assertions, the Search Warrant would not
have issued.” (Second Am. Compl. ¶ 926).
As to Defendant Smith, Plaintiffs allege that
as Gottlieb and Himan executed the search, “Duke
Police Sgt. Smith stood-by, outside the door of
McFadyen’s dorm room throughout the entire search
and took 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.” (Second Am.
Compl. ¶ 922). As to Defendants Levicy and Arico,
Plaintiffs allege that “Levicy and Arico agreed 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 that Levicy and Arico falsely
claimed was conducted by Levicy.” (Second Am.
Compl. ¶ 925). Plaintiffs do not separately state any
basis for this claim as to Defendants Stotsenberg
155a
and the other Defendants who are alleged to be part
of the “Day Chain of Command” (Defendants Best,
Fleming, Cooper, Humphries, Dean, Graves,
Dawkins, Trask, Brodhead, and Steel).
The Fourth Amendment, as applied to the
states through the Fourteenth Amendment,
prohibits “unreasonable searches and seizures” and
specifically provides that “no Warrants shall issue,
but upon probable cause supported by Oath or
affirmation, and particularly describing the places to
be searched and the persons or things to be seized.”
U.S. Const. amend. IV. The Fourth Amendment thus
protects the rights of citizens not to be searched
except upon a showing of probable cause and
pursuant to a warrant, unless an exception to the
warrant requirement is present. Probable cause to
search exists if there is “a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238,
103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). As
discussed with respect to Count 1, where a warrant
is issued, the search is still subject to challenge if a
“false statement knowingly and intentionally, or
with reckless disregard for the truth, was included
by the affiant in the warrant affidavit” and if the
“false information [is] essential to the probable cause
determination.” U.S. v. Colkley, 899 F.2d 297, 300
(4th Cir. 1990) (citing Franks v. Delaware, 438 U.S.
154, 155-56, 171-72, 98 S. Ct. 2674, 2676-77, 268485, 57 L. Ed. 2d 667 (1978)).
In this case, with respect to the claim alleged
in Count 2, the search conducted of McFadyen’s
dorm room was pursuant to a warrant. Plaintiffs
156a
contend that the affidavit submitted in support of
the warrant application was intentionally and
recklessly false and misleading. Plaintiffs set out
extensive factual allegations to establish the
plausibility of this claim, and generally allege that
“the Warrant’s material factual assertions were all
fabrications, and, in the absence of the fabricated
factual assertions, the Search Warrant would not
have issued.” (Second Am. Compl. ¶ 926). In
response, Defendants raise many of the same
contentions raised with respect to Count 1, including
the extensive factual contentions, and exhibits, to
dispute these allegations and to demonstrate that
probable cause existed even if the allegedly false
statements are removed and the material omissions
are included. Defendants’ discussion includes
analysis of the contents of an e-mail, disputes
regarding the source of that e-mail, and additional
factual discussion regarding the allegations that
were repeated from the NTO affidavit. However, as
discussed with respect to Count 1, the analysis
suggested by Defendants requires factual analysis
beyond the allegations in the Second Amended
Complaint, and the cases cited by the Defendants in
support of this analysis involve summary judgment
determinations, not determinations on a motion to
dismiss. Therefore, the Court finds that this type of
analysis is more appropriate at summary judgment
after an opportunity for discovery, when the factual
record is before the Court for consideration. At this
stage in the case, the Court simply concludes that
where officers deliberately or recklessly supply false
or misleading information to a magistrate to support
a warrant application, as alleged in the present case,
the officers may be liable under § 1983 for violation
157a
of an individual’s Fourth Amendment rights, if their
actions result in a search without probable cause. In
addition, as in Count 1, there is no question that
these rights were clearly established, and no
reasonable official could have believed that it was
permissible to deliberately or recklessly create false
or misleading evidence to present to a magistrate in
order to obtain a search warrant. See Miller, 475
F.3d at 631-32 (“The Supreme Court has long
held that a police officer violates the Fourth
Amendment if, in order to obtain a warrant, he
deliberately or ‘with reckless disregard for the truth’
makes material false statements or omits material
facts. . . . No reasonable police officer . . . could
believe that the Fourth Amendment permitted such
conduct.”); Brooks, 85 F.3d at 183-84. Thus, the
Court finds that, taking the allegations as true,
Plaintiffs have alleged plausible Fourth Amendment
claims as set out in Count 2, based on allegations of
deliberate or reckless submission of false and
misleading evidence, which require at least some
discovery so that Plaintiffs’ claims and Defendants’
qualified immunity defense can be assessed on a
factual record beyond just the allegations in the
Second Amended Complaint.
Having so concluded, the Court must again
consider whether this claim has been stated against
each of the Defendants against whom it is asserted.
First, as to Defendants Gottlieb and Himan,
Plaintiffs allege that Gottlieb and Himan were
directly involved in the intentional or reckless
fabrication of evidence that was submitted to obtain
the search warrant that resulted in the search of
McFadyen’s dorm room. As with the claims alleged
158a
in Count 1, Plaintiffs will ultimately be required to
present evidence to establish that the Defendants
engaged in this alleged conduct, and Defendants will
be entitled to present evidence to dispute these
allegations. Defendants will also be entitled to
present their qualified immunity defense on a
motion for summary judgment, for consideration on
the factual record. However, at this stage, as noted
above, the Court concludes that at the time of the
alleged conduct, it was clearly established that an
officer’s fabrication of evidence before a magistrate
judge to effect a search would violate the Fourth
Amendment. Therefore, the Motions to Dismiss will
be denied as to Defendants Gottlieb and Himan.
With respect to Defendants Levicy and Arico,
these Defendants contend that they are not liable
under § 1983 because they were not acting “under
color of state law” and because any alleged
constitutional violation was attributable to Nifong,
Gottlieb, and Himan. As discussed with respect to
Count 1, “[t]he under-color-of-state-law element of §
1983 excludes from its reach ‘merely private conduct,
no matter how discriminatory or wrongful.’”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999).
Thus, “the party charged with the deprivation must
be a person who may fairly be said to be a state
actor. . . . because he is a state official, because he
has acted together with or has obtained significant
aid from state officials, or because his conduct is
otherwise chargeable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct.
2744, 2754, 73 L. Ed. 2d 482 (1982). To the extent
that a § 1983 claim is based on an alleged “joint
159a
participation” or “conspiracy” between private actors
and public actors, a bare assertion of a “conspiracy”
is insufficient, and a plaintiff must plead enough
factual matter to plausibly suggest that an
agreement was made to deprive them of their
constitutional rights. See Howard v. Food Lion, Inc.,
232 F. Supp. 2d 585, 597 (M.D.N.C. 2002). In the
present case, with respect to Levicy, Plaintiffs allege
that Levicy had several meetings and interviews
with Gottlieb, Himan, and Nifong, and that during
those meetings she “repeatedly proffered false
testimony that was clearly designed to fill the
chasms of Mangum’s case and/or restore Mangum’s
glaring credibility problems,” and that this included
altering forms and evidence as needed to fit the
investigators’ case. (Second Am. Compl. ¶ 788; 780797). Based on those meetings, Plaintiffs allege that
Levicy “agreed 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” in the sexual assault examination.
(Second Am. Compl. ¶ 925). As noted in the Factual
Background, Plaintiffs set out specific allegations
that Levicy produced falsified medical records and
proffered false testimony to corroborate the
information in the warrant application. Therefore, as
in Count 1, the Court concludes that Plaintiffs have
alleged sufficient facts to state a claim against
Levicy for her alleged role in the claimed
constitutional violations, acting “under color of state
law,” at this stage in the case. That issue will,
however, be subject to further review on a motion for
summary judgment to determine whether sufficient
evidence exists to support this claim as to Levicy.
However, as to Defendant Arico, Plaintiffs do not
160a
allege facts specifically as to Arico to support a
plausible claim that she entered into an agreement
with Gottlieb, Himan, or Nifong to provide false
evidence or to obtain the search warrant and violate
Plaintiff McFadyen’s constitutional rights. The only
specific allegation as to Arico is that she gave an
interview to a newspaper reporter regarding the
sexual assault examination. (Second Am. Compl.
¶ 784). As in Count 1, this allegation against Arico is
insufficient to state a plausible claim that Arico
entered into a conspiracy with Nifong, Gottlieb, and
Himan and was acting under color of state law when
she gave the interview, or that the interview alone
was sufficient to allege joint participation in the
alleged violation of McFadyen’s constitutional rights.
Although Plaintiffs generally allege that Arico
“acting individually and in concert” initiated legal
process in the form of the search warrant, there are
no factual allegations that would support this
contention that she was involved in obtaining the
search warrant, and there are no allegations that
would support the conclusion that she participated
in an agreement to knowingly or recklessly present
the false evidence set out in the search warrant.
Therefore, the Motion to Dismiss will be granted
with respect to Count 2 as to Defendant Arico. Cf.
Howard, 232 F. Supp. 2d at 597 (dismissing § 1983
claim against private party where the complaint
failed to plead any facts suggesting that the private
party and the government actor reached a meeting of
the minds).
As to Duke Police Sergeant Smith, Plaintiffs
bring this claim based on Smith’s presence during
the execution of the warrant. This claim is a
161a
“bystander liability” claim, pursuant to which “an
officer may be liable under § 1983, on a theory of
bystander liability, if he: (1) knows that a fellow
officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent
the harm; and (3) chooses not to act.” See Randall v.
Prince George’s County, 302 F.3d 188, 202-04 (4th
Cir. 2002). As the basis for this claim, Plaintiffs
allege that Smith stood by outside the dorm room
during the execution of the search and had a
reasonable opportunity to prevent the harm, but did
not act to intervene in the search. The Supreme
Court in Ashcroft v. Iqbal reiterated that “[b]ecause
vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s
own
individual
actions,
has
violated
the
Constitution.” 129 S. Ct. 1937, 1948, 173 L. Ed. 2d
868 (2009) (emphasis added). Thus, to be liable for a
constitutional violation under § 1983 with respect to
Count 2, Smith himself must have had the requisite
intent to violate Plaintiff McFadyen’s constitutional
rights. See id. at 1948-49 (noting that each
government actor “is only liable for his or her own
misconduct” which requires the requisite intent for
the type of constitutional violation pled). For a
search conducted pursuant to a warrant, Defendant
Smith himself must have known that the sealed
warrant affidavit included false and misleading
evidence, and Smith must have acted with intent to
violate Plaintiff McFadyen’s rights or with reckless
disregard for those rights. Plaintiffs allege that
Smith was “aware that there was no probable cause
to believe the crimes alleged had been committed,”
(Second Am. Compl. ¶ 922), which would not alone
162a
be sufficient to establish liability since an officer
acting in good faith is entitled to rely on a warrant
issued by a magistrate judge. However, Plaintiffs
also allege that Smith was “[a]ware that Gottlieb
and Himan had falsified the material allegations in
the Warrant Affidavit,” and that he was physically
present for at least the execution of the alleged
constitutional violation. (Second Am. Compl. ¶ 614
615). The Court must take these allegations as true
at this stage in the case, although it ultimately will
be Plaintiffs’ burden to establish an evidentiary
basis for this contention. Likewise with respect to
whether Smith had a reasonable opportunity to
intervene, the Court concludes that while the
Jurisdictional Agreement between Durham Police
and Duke Police did not give the Duke Police any
authority over the Durham Police, as discussed with
respect to Count 12, a claim for bystander liability
relies not on authority but only on reasonable
opportunity to intervene, and the question of
whether there was a reasonable opportunity to
intervene involves factual inquiry beyond a motion
to dismiss. Finally, with respect to whether Smith
was acting “under color of state law,” Plaintiffs
allege that Smith was acting “under color of state
law” in his role as a Duke Police officer, which
provided him with statutory authority over areas
within the Duke Police Department’s jurisdiction.
Defendants do not specifically address this assertion.
Moreover, Plaintiffs’ allegations as to Defendant
Smith could, as with Levicy, be sufficient to state a
claim for “joint participation”, because in addition to
Plaintiffs’ general allegations of conspiracy,
Plaintiffs further allege that Smith was directly
involved with Gottlieb and Himan in executing the
163a
search, knowing that they had falsified allegations in
the warrant application. While the claim as to Smith
is not particularly strong, the Court concludes that
Plaintiffs have stated a plausible § 1983 claim
against Smith, although it will be Plaintiffs’ burden
to establish an evidentiary basis for this claim.
Therefore, the Motion to Dismiss Count 2 will be
denied as to Defendant Smith.
Finally, the Court notes that Plaintiffs have
not included any allegation or basis for asserting this
claim against Defendant Stotsenberg, or the
remaining members of the “Day Chain of Command”
(Best, Fleming, Cooper, Humphries, Dean, Graves,
Dawkins, Trask, Brodhead, and Steel). Therefore,
the Motions to Dismiss as to Count 2 will be granted
as to these Defendants. In addition, all of the
“official capacity” claims will be considered as part of
Count 12, since the “official capacity” claims are
essentially claims against the City, and Plaintiffs
must allege a separate basis for imputing liability to
the City, as discussed in Count 12.
As a result, the Motions to Dismiss Count 2
will be granted in part and denied in part.
Specifically, Count 2 will go forward as to
Defendants Nifong,21 Gottlieb, Himan, Levicy, and
Smith, in their individual capacities. However, this
claim will be dismissed as to Defendants Arico,
Stotsenberg, Best, Fleming, Cooper, Humphries,
The Court notes that Defendant Nifong has not filed
a Motion to Dismiss, so the conclusions here as to Count 2 are
without prejudice to any further determination as to Defendant
Nifong after his current status as a Defendant is clarified by
Plaintiffs. See supra note 1.
21
164a
Dean, Graves, Dawkins, Trask, Brodhead, and Steel.
In addition, all of the “official capacity” claims will
be treated as claims against the City and will be
considered as part of Count 12.
Count 3:
Abuse of Process and Conspiracy in
Violation of 42 U.S.C. § 1983,
asserted against Nifong, Gottlieb,
Himan, Levicy, Arico, Steel, Dzau,
Duke Health, and Duke
In Count 3, Plaintiffs assert a claim under 42
U.S.C. § 1983 for “Abuse of Process.” As the basis for
this claim, Plaintiffs allege that Nifong, Gottlieb,
Himan, Levicy, and Arico obtained the NTO
discussed in Count 1 and the McFadyen Search
Warrant discussed in Count 2 for the unauthorized
purposes of stigmatizing Plaintiffs, retaliating
against Plaintiffs for asserting their constitutional
rights, and coercing Plaintiffs and their teammates
to provide false information in support of the
investigation and prosecution. Plaintiffs allege that
with these purposes, “the Defendants” fabricated a
false and incendiary affidavit for the NTO and
Search Warrant applications and then “leaked the
[NTO] and Affidavit to the press” so that the media
could record Plaintiffs arriving at the Durham Police
Department. (Second Am. Compl. ¶ 931- 932).
Plaintiffs allege that as a result of the wrongful
application of the NTO and Search Warrant, they
were seized, detained and searched in violation of
their rights under Article IV22 of the Constitution
and the First, Fourth, and Fourteenth Amendments.
Article IV of the Constitution provides that “[t]he
Citizens of each State shall be entitled to all Privileges and
22
165a
It is well established that “[a] valid cause of
action under § 1983 is not alleged simply by the
assertion that a common law tort [such as abuse of
process] was committed by a state official. Rather, to
have a meritorious claim, a plaintiff must allege that
he was deprived of some constitutional right.”
Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir.
1981). Thus, there is no separate § 1983 claim for
“abuse of process.” Instead, to state a claim under
§ 1983, Plaintiffs must assert deprivation of a
constitutional right.
In Count 3, Plaintiffs generally assert
violations of the “First, Fourth and Fourteenth
Amendment.” However, Plaintiffs in their briefing
cite only Rogers v. Pendleton in support of this
claim. 249 F.3d 279, 294 (4th Cir. 2001) In Rogers,
the Fourth Circuit recognized a potential § 1983
claim for a Fourth Amendment violation where
officers allegedly arrested a citizen without probable
cause, simply for “refusing to consent to an illegal
search.” Id. at 295. In light of Rogers, Plaintiffs
agree that with respect to Count 3, “the Fourth
Circuit [has] located the right violated in analogous
circumstances in the Fourth Amendment.” (Pl.’s
Response, Doc. #81, at 9); see also Rogers, 249 F.3d
at 294-295. Thus, the right at issue in Count 3 is the
right to be free of unreasonable searches and
seizures under the Fourth Amendment, as discussed
with respect to Counts 1 and 2.
Immunities of Citizens in the several States.” U.S. Const art.
IV, § 2. Plaintiffs’ claims pursuant to Article IV are discussed
as part of Count 10.
166a
However,
having
reviewed
Plaintiffs’
allegations and the parties’ contentions, the Court
concludes that the alleged violations of Plaintiffs’
Fourth Amendment rights as alleged in Count 3 are
the same as the Fourth Amendment violations
alleged in Counts 1 and 2, the deliberate or reckless
use of false and misleading information to obtain a
warrant and NTO that were not supported by
probable cause. Although Plaintiffs also raise
additional contentions in Count 3 regarding the
officers’ subjective motivations, the constitutional
injury alleged is a Fourth Amendment violation for
unlawful search and seizure without probable cause.
Under established Fourth Amendment principles, an
officer’s improper motives do not establish a
constitutional violation, and police can arrest
citizens if probable cause exists to support the
arrest, regardless of the officers’ subjective
motivations. See Rogers, 249 F.3d at 290; Whren v.
United States, 517 U.S. 806, 813, 116 S. Ct. 1769,
1774, 135 L. Ed. 2d 89 (1996). Thus, if a search or
seizure is properly supported by probable cause,
there is no separate constitutional violation based on
the officers’ subjective motivations. As such, in the
present case, Plaintiffs cannot state a claim for a
Fourth Amendment violation based on allegations of
improper motives. Instead, Plaintiffs can state a
claim for a Fourth Amendment violation only to the
extent that Plaintiffs allege that the search and
seizure were not supported by probable cause and
were
unlawful
under
established
Fourth
Amendment jurisprudence. Plaintiffs attempt to
state such a claim based on allegations that their
Fourth Amendment rights were violated by the
deliberate or reckless use of false and misleading
167a
information to obtain a warrant and NTO that were
not supported by probable cause. However, these
alleged Fourth Amendment violations are the claims
already alleged by Plaintiffs in Counts 1 and 2, and
there is no legal basis for asserting a separate “abuse
of process” claim. Cf. Santiago v. Fenton, 891 F.2d
373, 388 (1st Cir. 1989) (“[A]buse of process-as a
claim separate from a claim that there was no
probable cause to make the arrest or institute the
prosecution-is not cognizable as a civil rights
violation under § 1983.”). Therefore, the Court will
dismiss Count 3 as a separate claim.
The Court notes, however, that as part of the
Fourth Amendment claims remaining in Counts 1
and 2, the Court does not foreclose the possibility
that evidence of the officer’s subjective motivations
may be relevant. See, e.g., Rogers, 249 F.3d at 295
(noting that in examining the officer’s claim of
qualified immunity, “we do not lose sight of the
possible inference from the evidence that [plaintiff’s]
arrest was motivated by the officers’ anger at his
‘irreverent’ refusal to consent to their search”).
Therefore, Plaintiffs are free to raise their
contentions as to the officers’ motivations as part of
their evidence on the Fourth Amendment claims in
Counts 1 and 2, particularly with respect to any
qualified immunity defense claimed by Defendants,
but the separate § 1983 claims asserted in Count 3
for “abuse of process” will be dismissed.23 Therefore,
To the extent that the claim in Count 3 relates to
reputational injury as a result of the release of the warrant
application, that claim is a claim for reputational injury
asserted as part of Count 5, and discussed as part of that
Count. The Court also notes that Count 3 includes claims
against Steel and Dzau not included as part of Counts 1 and 2.
23
168a
the Motions to Dismiss will be granted as to Count 3,
and the claims asserted in Count 3 will be dismissed.
Count 4:
Deprivation
of
Property
in
Violation of 42 U.S.C. § 1983,
asserted against Nifong, Gottlieb,
Himan, Clayton, Meehan, Clark,
DSI, and the City
In Count 4, Plaintiffs assert a claim under 42
U.S.C. § 1983 for deprivation of property in
connection with the alleged failure of Nifong,
Gottlieb, Himan, Clayton, Meehan, and Clark to
provide Plaintiffs the results of the DNA tests. As
the basis of this claim, Plaintiffs allege that
pursuant to North Carolina General Statute § 15A282, they had “an unconditional, immediate right to
copies of reports of any tests conducted with the
DNA and photographs taken” pursuant to the NTO.
(Second Am. Compl. ¶ 944). Plaintiffs allege that
these test results included a March 28 and March 30
SBI report provided to Himan, Gottlieb, and Nifong,
an April 4 SBI report provided to Himan, Gottlieb,
and Nifong, an April 4 identification procedure, April
10 DNA testing results from DSI provided to Himan,
Gottlieb, and Nifong by Meehan and Clark, an April
21 DNA report from DSI provided to Himan,
Gottlieb, and Nifong by Meehan and Clark, and a
However, Plaintiffs have not pled a sufficient factual basis to
state a claim that Steel and Dzau were acting under color of
state law, or that they were involved in the actual
constitutional violations asserted in Counts 1 and 2. The
allegations as to the remaining Defendants are addressed as
part of Counts 1 and 2. Therefore, Count 3 is appropriately
dismissed as to all of the Defendants against whom it is
asserted.
169a
May 11 photographic identification procedure with
Kim Pittman conducted by Clayton, Gottlieb, and
Himan. (Second Am. Compl. ¶ 945). Plaintiffs allege
that Himan, Gottlieb, Nifong, Meehan, and Clark
conspired to conceal the DNA test results, and that
Himan, Gottlieb, Clayton, and Nifong conspired to
conceal the fact that the photo identification
procedures were conducted and conspired to conceal
the results of those procedures. Finally, Plaintiffs
allege that Nifong, Himan, and Gottlieb refused to
disclose the reports and made false statements to
Plaintiffs and their counsel regarding the reports.
Plaintiffs allege that the conspiracy to deprive them
of these reports was connected with the other
deprivations of Plaintiffs’ federally-protected rights,
and deprived them of their rights under Article IV of
the Constitution and the First, Fifth, and
Fourteenth Amendments.
The Fourteenth Amendment protects citizens
against deprivations of property without due process
of law. U.S. Const. amend. XIV.24 However, to state a
§ 1983 claim for violation of their Fourteenth
Amendment rights in this respect, Plaintiffs must
establish a federally protected property interest. See
Town of Castle Rock v. Gonzales, 545 U.S. 748, 756,
125 S. Ct. 2796, 2803, 162 L. Ed. 2d 658 (2005). The
protected property interest may be a property right
or benefit created by state law. However, “[t]he
procedural component of the Due Process Clause
does not protect everything that might be described
To the extent that this claim attempts to state a
claim for failure to disclose exculpatory evidence in violation of
the Fifth Amendment, that claim is separately addressed below
in Count 7.
24
170a
as a ‘benefit’: ‘To have a property interest in a
benefit, a person clearly must have more than an
abstract need or desire’ and ‘more than a unilateral
expectation of it. He must, instead, have a legitimate
claim of entitlement to it.’” Id. (quoting Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,
2709, 33 L. Ed. 2d 548 (1972)). In determining
whether a state statute creates federally-protected
property rights, the Supreme Court has held that
“[a]lthough the underlying substantive interest is
created by ‘an independent source such as state law,’
federal constitutional law determines whether that
interest rises to the level of a ‘legitimate claim of
entitlement’ protected by the Due Process Clause.”
Id. at 757, 125 S. Ct. at 2803-04 (internal quotations
omitted); see also Ledford v. Sullivan, 105 F.3d 354,
358 (7th Cir. 1997) (“A state-created procedural right
or policy is not itself a property interest within the
confines of the Fourteenth Amendment.”).
In Count 4, Plaintiffs contend that they had a
constitutionally protected property interest in the
results of tests conducted with their photographs
and DNA samples that were the products of the NTO
procedure, pursuant to North Carolina General
Statute § 15A-282. That statute provides that “[a]
person who has been the subject of nontestimonial
identification procedures or his attorney must be
provided with a copy of any reports of test results as
soon as the reports are available.” N.C. Gen. Stat.
§ 15A-282. However, North Carolina General Statute
§ 15A-282 is a state criminal procedure statute, and
does not create substantive property rights in the
test results. Indeed, the State Criminal Procedure
Act provides for suppression of evidence obtained as
171a
a result of a “substantial” violation of these statutory
provisions, but the state courts have not found a
substantial violation of § 15A-282 in cases involving
delays of months or even years in providing the test
results. See, e.g., State v. Pearson, 145 N.C. App.
506, 514-15, 551 S.E.2d 471, 477 (2001); State v.
Daniels, 51 N.C. App. 294, 300, 276 S.E.2d 738, 742
(1981); see also N.C. Gen. Stat. § 15A-974; State v.
Pearson, 356 N.C. 22, 33, 566 S.E.2d 50, 57 (2002)
(finding that failure to provide the required reports
in a timely manner was “insignificant” and did not
result in a substantial violation of the statutory
provisions).
Having considered the contentions of the
parties, the Court concludes that the state
procedural law set out in North Carolina General
Statute § 15A-282 does not create property rights
that are subject to the due process protections of the
Fourteenth Amendment.25 The Court finds that the
procedural rights set out in that state statute do not
“resemble any traditional conception of property.”
Town of Castle Rock, 545 U.S. at 766, 125 S. Ct. at
2809. In these circumstances, even if one or more of
Moreover, even if this statute could be viewed as
creating a property right, Plaintiffs do not allege what type of
pre-deprivation process they were entitled to that was not
provided or how the named Defendants failed to provide the
process that they contend was due. Cf. Board of Regents, 408
U.S. at 569-70 (describing types of process to be provided, prior
to the deprivation of the property interest, such as notice and
an opportunity to be heard). The Court concludes that
Plaintiffs’ failure to address these issues, and the incongruity
in trying to define what process is “due” in these circumstances,
are further evidence that the procedural law at issue here does
not create a property right for which the state must provide
procedural due process before deprivation.
25
172a
the named Defendants should have provided the
results or reports to Plaintiffs under the North
Carolina state procedural law, the Court will not
expand this state procedural statute into a federallyprotected right, the violation of which would expose
state actors to potential § 1983 liability. Therefore,
the Court concludes that Plaintiffs cannot state a §
1983 claim for the alleged failure to comply with
North Carolina General Statute § 15A-282. The
Motions to Dismiss as to Count 4 will therefore be
granted, and claims asserted in Count 4 will be
dismissed.
Count 5:
False
Public
Statements
in
Violation of 42 U.S.C. § 1983,
asserted against Addison, Gottlieb,
Hodge, Nifong, Wilson, Arico, Steel,
Brodhead, and Burness26
In Count 5, Plaintiffs assert a claim under 42
U.S.C. § 1983 for “false public statements,” alleging
26 The claims are asserted against all of the individuals
in their individual capacities, and against Addison, Gottlieb,
Hodge, and Wilson in their official capacities. However, to the
extent that this claim is asserted against City employees
Addison, Gottlieb and Hodge in their official capacities, that
claim is appropriately treated as a claim against the City. All of
the § 1983 claims against the City are considered as part of the
Monell claim in Count 12. To the extent that this claim is
asserted against Defendant Wilson in his “official capacity,” the
Court notes that Defendant Wilson is not alleged to have been
a City employee and does not have an “official capacity” with
respect to the City. Similarly, to the extent that Plaintiffs
assert this claim against Nifong in his “official capacity with
respect to the Durham Police,” Nifong does not have an “official
capacity” with the Durham Police, as discussed as part of
Monell claims in Count 12.
173a
that their constitutional rights were violated by the
publication of false and stigmatizing statements
about them. Plaintiffs allege that Gottlieb published
statements falsely asserting that Mangum was
raped, sodomized, and strangled by Plaintiffs or by
their teammates in their presence. Plaintiffs allege
that Addison published multiple false statements
regarding the evidence and that Hodge made a
statement falsely claiming that police had a strong
case against Plaintiffs. Plaintiffs allege that Wilson
falsely asserted that Mangum’s account had not
changed and that Nifong made numerous false
statements regarding the evidence and the
Plaintiffs.27 Plaintiffs allege that Levicy published
false statements regarding the sexual assault
examination, and that Arico published statements
falsely asserting that a complete examination was
performed, that it was done by a competent sexual
assault nurse, and that it “produced evidence of
blunt force trauma via a coloposcope.” (Second Am.
Compl. ¶ 956). Plaintiffs allege that Defendants
Steel, Brodhead, and Burness “repeatedly published
false statements conveying that Plaintiffs had
participated in conduct that was ‘far worse’ than
even the horrific race-motivated gang-rape that was
reported, either as participants or as accomplices.”
(Second Am. Compl. ¶ 956). Plaintiffs allege that the
statements were false and were made in conjunction
Plaintiffs also allege that Defendant Michael
published false public statements regarding Pittman’s 911 call,
but Defendant Michael is not named as a Defendant in this
Count. In addition, Plaintiffs in their briefing refer to
Defendant Himan and Defendant Levicy, but these Defendants
also are not named in this Count. Therefore, because Count 5 is
not asserted against Michael, Himan, or Levicy, the Court will
not consider that claim as to those Defendants.
27
174a
with the deprivations of Plaintiffs’ rights under
Article IV of the Constitution and the First, Fourth,
Fifth and Fourteenth Amendments.28 Plaintiffs
allege that they had no opportunity before or after
they were stigmatized by the false public statements
to formally and directly clear their good names
through any form of proceedings. Plaintiffs allege
that as a result of Defendants’ conduct, they were
deprived of their rights under Article IV of the
Constitution and the First, Fourth, Fifth, Sixth,
Ninth, and Fourteenth Amendments.
Plaintiffs also allege that with respect to
Steel, Brodhead, and Burness, in addition to
publishing false public statements on their own,
these Defendants “knew of the outrageous, false and
stigmatizing Faculty Statements being made
publicly in demonstrations on- and off-campus,
lectures in University classrooms, in speeches at
professional conferences, in local and national
28 Plaintiffs also allege that the statements were made
in connection with other deprivations, including the statutory
right to reports of all tests conducted with NTO materials, their
rights under election laws, and their privacy rights under
federal and state laws. To the extent that these deprivations
have been raised as separate claims, they are discussed with
respect to Counts 4, 8, and 22. Plaintiffs also raise as potential
deprivations the right to compete in Division I athletics and
their educational status as students. But see Equity in
Athletics, Inc. v. Dep’t of Educ., No. 10-1259, 2011 WL 790055,
at *13-14 (4th Cir. March 8, 2011) (finding no property interest
in intercollegiate athletic participation). In any event, Plaintiffs
have not presented any authority that would support
recognition of a “stigma-plus” claim in connection with any of
those alleged deprivations, and the Court recognizes the claims
alleged in Count 5 only to the extent that they are connected
with the alleged constitutional violations in Counts 1 and 2.
175a
newspapers, and on local and national television
news programs” and “knew or were deliberately
indifferent to the likelihood that their subordinates’
conduct was violating or would likely lead to the
violations of Plaintiffs’ constitutional rights.”
(Second Am. Compl. ¶ 963). Plaintiffs allege that
Steel, Brodhead, and Burness refused to intervene to
correct the unconstitutional conduct. Plaintiffs allege
that the Defendants continued to make these
statements “long after they were aware . . . that
Mangum’s accusations were false.” (Second Am.
Compl. ¶ 965). Plaintiffs allege that the Defendants’
“failure to act to prevent or stop the ongoing
violations of Plaintiffs’ constitutional rights evinces a
reckless and callous disregard for, and deliberate
indifference to the Plaintiffs’ constitutional rights.”
(Second Am. Compl. ¶ 966). Plaintiffs allege that as
a result, they were deprived of their rights under
Article IV of the Constitution and the First, Fourth,
Fifth, Sixth, Ninth and Fourteenth Amendments.
The Fourteenth Amendment protects against
deprivations of liberty or property rights without due
process of law. However, to be entitled to procedural
due process rights, a claimant must identify the
liberty or property interest at issue. In this regard,
the Supreme Court has recognized the right to due
process “[w]here a person’s good name, reputation,
honor, or integrity is at stake because of what the
government is doing to him.” Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510,
27 L. Ed. 2d 515 (1971). However, the Supreme
Court has also held that an injury to reputation
alone does not deprive a plaintiff of “liberty” or
“property” interests to state a Fourteenth
176a
Amendment violation. See Paul v. Davis, 424 U.S.
693, 711-12, 96 S. Ct. 1155, 1165-66, 47 L. Ed. 2d
405 (1976). In Paul, the Supreme Court held that
where defamatory flyers were distributed by police
officers and caused the plaintiff reputational harm,
the plaintiff could not state a Fourteenth
Amendment violation unless the plaintiff alleged, in
addition to the defamatory statement, that some
other right or status was altered or extinguished.
See id. Under Paul, a Fourteenth Amendment claim
based on defamatory statements by government
actors requires a plaintiff to allege “(1) the utterance
of a statement about her that is injurious to her
reputation, ‘that is capable of being proved false, and
that he or she claims is false,’ and (2) ‘some tangible
and material state-imposed burden . . . in addition to
the stigmatizing statement.’” Velez v. Levy, 401 F.3d
75, 87 (2d Cir. 2005) (citation omitted). Such a claim
is often referred to as a “stigma-plus” claim. Id.;
Cooper v. Dupnik, 924 F.2d 1520, 1532 n.22 (9th Cir.
1991) (“The ‘plus’ part of this test can be met by
either the denial of a right specifically secured by the
Bill of Rights (such as the right to free speech or
counsel), or the denial of a state-created property or
liberty interest such that the Fourteenth
Amendment’s Due Process Clause is violated.”).
Courts have recognized a “stigmaplus” claim where
officers are alleged to have made defamatory
statements in connection with unlawful arrests or
seizures in violation of the Fourth Amendment. See,
e.g., Cooper, 924 F.2d at 1534-36; Marrero v. City of
Hialeah, 625 F.2d 499, 517-19 (5th Cir. 1980); see
also Albright v. Oliver, 510 U.S. 266, 294-96, 114 S.
Ct. 807, 823-26 127 L. Ed. 2d 114 (1994) (Stevens, J.,
dissenting) (noting that injury to reputation plus
177a
unconstitutional prosecution is sufficient to establish
“stigma plus”). In addition, the court in Cooper noted
that “the law on this point – that defamation in
connection with the violation of a constitutional right
states a claim under section 1983 - was clear” and “it
should have been clear to a reasonable public
official” that such claims were actionable. Cooper,
924 F.2d at 1534-36 (denying qualified immunity for
§ 1983 claim involving defamatory statements
“intertwined with” an alleged Fourth Amendment
violation for an unconstitutional arrest).
In light of these cases and in light of the
Court’s determination that Plaintiffs have stated a
potential claim for violation of their Fourth
Amendment rights with respect to Counts 1 and 2,
the Court concludes that Plaintiffs have alleged a
§ 1983 claim for violation of their Fourteenth
Amendment rights based on the alleged government
officials’ false public statements that imposed a
reputational burden on them without providing due
process. Specifically, the Court finds that Plaintiffs
have alleged a “stigma-plus” claim with a “tangible
state-imposed burden . . . in addition to the
stigmatizing statement,” because the false public
statements were made in connection with the alleged
Fourth Amendment violation for alleged unlawful
search and seizure as discussed above with respect
to Counts 1 and 2. In addition, at this stage in the
case, there are sufficient grounds to conclude that
this right was clearly established, and any further
qualified immunity analysis would be more
178a
appropriate at summary judgment on a factual
record.29
However, as in Counts 1 and 2, the Court
must consider whether Plaintiffs have stated a claim
against each of the Defendants against whom this
claim is asserted. With respect to Gottlieb, Plaintiffs
allege that Gottlieb deliberately made false
statements in the affidavit in support of the NTO
and search warrant, with the intent that the
information would be published and would
stigmatize Plaintiffs. This claim is directly related to
the claims asserted in Counts 1 and 2, and the Court
finds that Plaintiffs have stated a claim in Count 5
with respect to Gottlieb as a result of allegedly false
public statements made in connection with the
alleged Fourth Amendment violations in Counts 1
and 2.
With respect to Defendants Addison, Hodge,
and Wilson, Plaintiffs contend that Addison, Hodge,
and Wilson each made false public statements, and
29 The Court notes that this claim may, to some extent,
simply overlap with the damages Plaintiffs would attempt to
show with respect to Counts 1 and 2. However, the Court
concludes that there is sufficient basis at the present stage in
the case to allow this claim to proceed, and further distinctions
between the claims, if necessary, will be considered on motions
for summary judgment following discovery. Similarly, the
Court notes that there are issues regarding which of the
Defendant failed to provide Plaintiffs the process to which they
contend they were due prior to the deprivation of Plaintiffs’
interests. However, the Court concludes that at this stage,
Plaintiffs have alleged a joint effort among Nifong, Gottlieb,
Himan, Addison, and Wilson to deprive Plaintiffs of their
constitutional rights, with direct participation specifically
alleged as to each of them. Therefore, the Court will allow these
claims to proceed.
179a
Plaintiffs also contend that Addison, Hodge, and
Wilson knew of and participated in the conspiracy to
create false and misleading evidence against them.
Cf. Velez, 401 F.3d at 88-89 (noting that “[w]hen
government actors defame a person and - either
previously or subsequently - deprive them of some
tangible legal right or status . . . a liberty interest
may be implicated, even though the ‘stigma’ and
‘plus’ were not imposed at precisely the same time”
or by “the same actor,” as long as they are
“connected”); Marrero, 625 F.2d at 519 (noting that it
is sufficient “that the defamation occur in connection
with, and be reasonably related to, the alteration of
the right or interest”). To the extent that these
Defendants contest the particular nature or timing
or effect of what was allegedly said, the Court
concludes that such a factual inquiry is more
appropriate on a motion for summary judgment, and
Plaintiffs have alleged that each of the named
Defendants
made
deliberately
false
public
statements in connection with the NTO and the
subsequent alleged falsification of evidence to
support the NTO and cover-up the constitutional
violations.30
30 In particular as to Defendant Hodge, the Court notes
that Defendant Hodge challenges whether Plaintiffs can state a
claim against him for his single statement asserting that police
had a “strong case.” However, Plaintiffs also allege that Hodge
ratified and subsequently participated in the stigmatizing
statements by Nifong, Gottlieb, and Addison. The Court
concludes that at this stage in the case, Plaintiffs have stated a
claim against Hodge, and further analysis of Hodge’s actual
knowledge and participation, and his entitlement to qualified
immunity, will be considered on a motion for summary
judgment on the record at that time.
180a
With respect to Defendant Wilson, who was
employed by the District Attorney’s office, Wilson
raises a defense of absolute prosecutorial immunity.
See Van de Kamp v. Goldstein, 129 S. Ct. 855, 860,
172 L. Ed. 2d 706 (2009) (holding that prosecutors
are absolutely immune from liability for
“prosecutorial actions that are ‘intimately associated
with the judicial phase of the criminal process’”
(quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96
S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976))). However,
absolute immunity does not apply to investigative or
administrative tasks, and the Supreme Court has
held that “absolute immunity does not apply when a
prosecutor gives advice to police during a criminal
investigation [or] when the prosecutor makes
statements to the press.” Id. at 861. Therefore,
absolute prosecutorial immunity would not apply to
the claims asserted against Wilson in Count 5. The
Court therefore concludes that Plaintiffs have
alleged facts to set out a plausible claim in Count 5
as to Defendants Addison, Hodge, and Wilson,
although it will of course be Plaintiffs’ burden to
present evidence in support of these claims, and
Defendants will be entitled to raise qualified
immunity based on the factual record at summary
judgment.
With respect to Defendants Arico, Steel,
Brodhead and Burness, these Defendants contend
that they are not liable under § 1983 because they
were not acting “under color of state law.” As noted
above, “[t]he under-color-of-state-law element of §
1983 excludes from its reach ‘merely private conduct,
no matter how discriminatory or wrongful.’”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
181a
40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999)
(internal citations omitted). Thus “the party charged
with the deprivation must be a person who may
fairly be said to be a state actor. . . . because he is a
state official, because he has acted together with or
has obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922,
937, 102 S. Ct. 2744, 2754, 73 L. Ed. 2d 482 (1982).
“Under th[e state-action or color-of-law] doctrine, we
‘insist []’ as a prerequisite to liability ‘that the
conduct allegedly causing the deprivation of a
federal right be fairly attributable to the State.’ By
doing so, we maintain the Bill of Rights as a shield
that protects private citizens from the excesses of
government, rather than a sword that they may use
to impose liability upon one another.” Phillips v. Pitt
County Mem. Hosp., 572 F.3d 176, 181 (4th Cir.
2009) (quoting Holly v. Scott, 434 F.3d 287, 292 (4th
Cir. 2006) (“Statutory and common law, rather than
the Constitution, traditionally govern relationships
between private parties.”)). To the extent that a §
1983 claim is based on an alleged “joint
participation” or “conspiracy” between private actors
and public actors, a bare assertion of a “conspiracy”
is insufficient, and a plaintiff must plead enough
factual matter to plausibly suggest that an
agreement was made to deprive them of their
constitutional rights. See Howard v. Food Lion, Inc.,
232 F. Supp. 2d 585, 597 (M.D.N.C. 2002) (holding
that in bringing a conspiracy claim under § 1983, the
plaintiff “must allege both a mutual understanding
to achieve some unconstitutional action reached by
the private and state defendants and some factual
assertions suggesting a meeting of the minds,” and
182a
that “[w]hen a complaint contains merely a vague
allegation of conspiracy, it cannot withstand a
motion to dismiss”); see also Franklin v. Fox, 312
F.3d 423, 445 (9th Cir. 2002) ( “To be liable as a coconspirator, a private defendant must share with the
public entity the goal of violating a plaintiff’s
constitutional rights.”). In addition, to be acting
“under color of state law” based on joint
participation, “the private action must have a
‘sufficiently close nexus’ with the state [so] that the
private action ‘may be fairly treated as that of the
State itself.’” DeBauche v. Trani, 191 F.3d 499, 507
(4th Cir. 1999) (citation omitted).
In the present case, Plaintiffs allege generally
that Arico, Steel, Brodhead, and Burness were acting
under “color of law.” (Second Am. Compl. ¶ 955).
However, a conclusory allegation that an individual
or entity was acting “under color of law” is not
sufficient, and Plaintiffs must instead plead specific
facts to survive a motion to dismiss. With respect to
Defendants Arico, Steel, Brodhead, and Burness,
Plaintiffs do not allege facts specifically to support
the conclusion that these individuals entered into an
agreement with Gottlieb, Himan, or Nifong to
provide false evidence in connection with the NTO
and violate Plaintiffs’ constitutional rights. As noted
with respect to Counts 1 and 2, the only specific
allegation as to Arico is that she gave an interview to
a newspaper reporter regarding the sexual assault
examination. (Second Am. Compl. ¶ 784). This
allegation against Arico is insufficient to state a
plausible claim that Arico entered into a conspiracy
with Nifong, Gottlieb, and Himan and was acting
under color of state law when she gave the interview,
183a
or that the interview alone was sufficient to allege
joint participation by Arico in the alleged violation of
Plaintiffs’ constitutional rights. With respect to
Steel, Brodhead, and Burness, Plaintiffs allege
generally that Duke officials met with Durham
Police officials, but there is not a sufficient factual
basis alleged to state a plausible claim that these
Defendants reached a meeting of the minds with
Nifong, Gottlieb, and Himan to jointly participate in
a violation of Plaintiffs’ constitutional rights as
alleged in Counts 1 and 2. Moreover, with respect to
the particular allegations in Count 5 as to
statements made by Steel, Brodhead, and Burness,
the Court concludes that Plaintiffs have not stated a
plausible claim that this private action “may be
fairly treated as that of the State itself.” Because
there is not a plausible claim that Defendants Arico,
Steel, Brodhead, and Burness were acting “under
color of state law,” the Motion to Dismiss will be
granted with respect to Count 5 as to these
Defendants. Cf. Howard, 232 F. Supp. 2d at 597
(dismissing § 1983 claim against private party where
the complaint failed to plead any facts suggesting
that the private party and the government actor
reached a meeting of the minds).
Finally, the Court notes that the “official
capacity” claims against Addison, Gottlieb, and
Hodge will be treated as claims against the City, and
those claims against the City and against Duke and
will be considered as part of Count 12, since
Plaintiffs must allege a separate basis for imputing
liability to these Defendants, and those allegations
are made by Plaintiffs as part of Count 12.
184a
Therefore, with respect to Count 5, the Court
concludes that Count 5 will go forward as to
Defendants Nifong,31 Gottlieb, Addison, Hodge, and
Wilson in their individual capacities. However, this
claim will be dismissed as to Defendants Arico,
Steel, Brodhead, and Burness. In addition, to the
extent that this claim is asserted against Duke or
the individual Defendants in their “official
capacities,” those claims will be considered as part of
Count 12.32
Count 6:
Manufacture of False Inculpatory
Evidence
and
Conspiracy
in
Violation of 42 U.S.C. § 1983,
asserted against Nifong, Gottlieb,
Himan, Clayton, Duke Health,
Private Diagnostic, Manly, Arico,
Levicy, Clark, Meehan, DSI, Duke,
and the City
In Count 6, Plaintiffs bring a claim under 42
U.S.C. § 1983 for the manufacture of false
inculpatory evidence. As the basis for this claim,
Plaintiffs allege that Nifong, Gottlieb, Himan, Duke,
The Court notes that Defendant Nifong has not filed
a Motion to Dismiss, so the conclusions here as to Count 5 are
without prejudice to any further determination as to Defendant
Nifong after his current status as a Defendant is clarified by
Plaintiffs. See supra note 1.
31
Plaintiffs also allege that Hodge (Durham Police) and
Graves (Duke Police) delegated final policymaking authority to
Gottlieb, Nifong, and Addison, and then ratified and
subsequently participated in the stigmatizing statements by
Nifong, Gottlieb, and Addison. However, with respect to
Defendant Graves, the Court notes that Graves is not included
as a Defendant on this count.
32
185a
Duke Health, Private Diagnostic, Manly, Arico, and
Levicy conspired to “fabricate inculpatory forensic
medical evidence for the purpose of corroborating
Mangum’s false accusations by altering the SAER
and other medical records that contradicted
Mangum’s claims to conform them to the fabricated
[NTO] Affidavit as well as the expected evidence in
the case.” (Second Am. Compl. ¶ 970). Plaintiffs
allege that Levicy, under Arico’s supervision,
fabricated the medical records by revising the
original responses and fabricating responses to
match existing and expected evidence. Plaintiffs
further allege that Nifong, Gottlieb, Clayton, and
Himan designed an identification procedure that
was, by design, intended to “facilitate the
misidentification of Plaintiffs and/or Plaintiffs’
teammates.” (Second Am. Compl. ¶ 972). Plaintiffs
allege that Nifong, Gottlieb, Himan, Clark, Meehan,
and DSI, conspired to produce a false and misleading
DNA report, including fabrication of a DNA “match”
involving a “crime scene fingernail” without noting
that no material on the fingernail matched Mangum,
and that the report was fabricated with the specific
intent to intimidate other team members. (Second
Am. Compl. ¶ 973). Plaintiffs contend that the
Defendants engaged in this conduct with the intent
of securing indictments of Plaintiffs and their
teammates, and with reckless disregard for and
deliberate indifference to Plaintiffs’ rights, resulting
in deprivation of Plaintiffs’ rights under Article IV of
the Constitution and the First, Fourth, Fifth, and
Fourteenth Amendments.
The Fourth Circuit has held that individuals
possess a Fourteenth Amendment Due Process
186a
“‘right not to be deprived of liberty as a result of the
fabrication of evidence by a government officer
acting in an investigating capacity.’” Washington v.
Wilmore, 407 F.3d 274, 282 (4th Cir. 2005) (quoting
Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000));
see White v. Wright, 150 Fed. Appx. 193, 198-99 (4th
Cir. 2005). Indeed, “‘if any concept is fundamental to
our American system of justice, it is that those
charged with upholding the law are prohibited from
deliberately fabricating evidence and framing
individuals for crimes they did not commit. Actions
taken in contravention of this prohibition necessarily
violate due process (indeed, we are unsure what due
process entails if not protection against deliberate
framing under color of official sanction).’”
Washington, 407 F.3d at 285 (Shedd, J., concurring)
(quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st
Cir. 2004)). This Fourteenth Amendment right
applies to the use of fabricated evidence at trial. See
id. at 282-84. In addition, some courts have
recognized a Fourteenth Amendment right in the
context of pre-trial proceedings, where the fabricated
evidence resulted in the citizen’s arrest after his
indictment. See id. at 282 (citing Zahrey v. Coffey,
221 F.3d 342, 349-50 (2d Cir. 2000)). Thus, although
there is a lack of clear guidance on the structure of
the various constitutional doctrines involved here,
the Court concludes that there can be no question
that the Constitution has been violated when
government officials intentionally fabricate evidence
to frame innocent citizens, if that evidence is then
used to deprive those citizens of life, liberty, or
property in some manner.
187a
However, there must be some deprivation of a
recognized liberty or property interest in order to
invoke the protections of the Fourteenth
Amendment. See Zahrey v. Coffey, 221 F.3d 342, 348
(2d Cir. 2000) (“The manufacture of false evidence,
‘in and of itself,’ . . . does not impair anyone’s liberty,
and
therefore
does
not
impair
anyone’s
constitutional right.”). Plaintiffs nevertheless
contend that they can state a claim in Count 6 under
the Fourteenth Amendment for conduct by
government officials that “shocks the conscience.”
However, conduct that “shocks the conscience” may
be actionable in a § 1983 claim under the Fourteenth
Amendment, but only where the conscience-shocking
conduct actually results in deprivation of a life,
liberty or property interest. See County of
Sacramento v. Lewis, 523 U.S. 833, 845-49, 118 S.
Ct. 1708, 1716-18, 140 L. Ed. 2d 1043 (1998). Thus,
established case law simply does not allow this
Court to recognize a separate Fourteenth
Amendment violation for manufacturing of false
inculpatory evidence, where no life, liberty, or
property interest is impaired as a result of that
misconduct.33
In considering these principles in the present
case, the Court concludes that Plaintiffs have not
alleged any deprivation of a liberty or property
interest, other than that alleged as part of Counts 1,
Of course, manufacturing false evidence may expose
prosecutors and investigators to internal discipline, and may
result in a state law claim for obstruction of justice, as
discussed with respect to Count 18. However, there is no
violation of a federal constitutional right under the Fourteenth
Amendment unless a liberty or property interest is implicated.
33
188a
2, and 5, and the Court has already addressed those
claims as to each of those respective counts.34
However, the Court cannot recognize an additional,
separate Fourteenth Amendment claim for
fabrication of evidence when no other protected
liberty or property interest is implicated. Plaintiffs
here were not indicted or tried or otherwise subject
to any other deprivation of a liberty or property
interest based on the allegedly fabricated evidence,
other than as already recognized with respect to
Counts 1, 2, and 5. Therefore, the Motions to
Dismiss as to Count 6 will be granted, and the
claims alleged in Count 6 will be dismissed.
34 The Court notes that where a specific amendment,
such as the Fourth Amendment, applies to an alleged claim,
the Court will look to the contours and requirements of that
more specific provision, rather than the substantive due
process provisions of the Fourteenth Amendment. See Albright
v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813, 127 L. Ed. 2d
114 (1994) (“Where a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not
the more generalized notion of ‘substantive due process,’ must
be the guide for analyzing these claims.’” (citation omitted)). To
the extent that Plaintiffs invoke the protections of the
Fourteenth Amendment as part of their claims in Counts 1, 2,
and 5, the Court has already determined that each of those
respective Counts is proceeding, and the Court will not further
parse those claims between the Fourth and Fourteenth
Amendments at this time.
189a
Count 7:
Concealment
of
Exculpatory
Evidence
and
Conspiracy
in
Violation of 42 U.S.C. § 1983,
asserted against Nifong, Gottlieb,
Himan, Clayton, Clark, Meehan,
DSI,
Duke
Health,
Private
Diagnostic, Manly, Arico, Levicy,
Steel, Best, Graves, Dean, Duke,
and the City
In Count 7, Plaintiffs assert a claim under 42
U.S.C. § 1983 for concealment of exculpatory
evidence. Plaintiffs allege that Gottlieb, Himan,
Nifong, Clark, Meehan, and DSI intentionally and
maliciously concealed exonerating DNA evidence
with reckless disregard for and deliberate
indifference to Plaintiffs’ constitutional rights.35
Plaintiffs allege that Defendants’ conduct deprived
them of their rights under Article IV of the
Constitution as well as the First, Fourth, Fifth, and
Fourteenth Amendments.
However, the right to disclosure of exculpatory
information is a trial right, and the Fourth Circuit
has held a claim for failure to disclose exculpatory
35 Although this Count is also asserted against Clayton,
Duke Health, Private Diagnostic, Manly, Arico, Levicy, Steel,
Best, Graves, Dean, and Duke, Plaintiffs do not include any
allegations as to those Defendants in Count 7, and instead
Count 7 is limited to the alleged concealment of DNA evidence
by Gottlieb, Himan, Nifong, Clark, Meehan, and DSI. As such,
there is no basis stated for the claim against Clayton, Duke
Health, Private Diagnostic, Manly, Arico, Levicy, Steel, Best,
Graves, Dean, and Duke. Moreover, this count fails to state a
claim against any of the Defendants for the reasons discussed
above.
190a
information during an investigation “does not allege
a deprivation of any right guaranteed under the Due
Process Clause of the Fourteenth Amendment,” and
is instead cognizable only pursuant to the Fourth
Amendment. See Taylor v. Waters, 81 F.3d 429, 436
(citing Albright v. Oliver, 510 U.S. 266, 268-76, 114
S. Ct. 807, 810-14, 127 L. Ed. 2d 114 (1994) and
Baker v. McCollan, 443 U.S. 137, 142-46, 99 S. Ct.
2689, 2693-96, 61 L. Ed. 2d 433 (1979)); see also
United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450,
2454 (2002) (noting that a defendant’s right to
receive exculpatory material from prosecutors is “a
right that the Constitution provides as part of its
basic ‘fair trial’ guarantee” under the Fifth and Sixth
Amendments (citing Brady v. Maryland, 373 U.S. 83,
87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963))).
Thus, Plaintiffs cannot state a Fourteenth
Amendment claim for failure to disclose exculpatory
evidence or for concealment of evidence during the
investigation where they were not subject to trial. As
discussed above with respect to Count 6, Plaintiffs
have asserted Fourth Amendment claims in Counts
1 and 2, and as part of those claims, the Court has
considered Plaintiffs’ contentions that they were
subject to searches and seizures on warrants that
were obtained by deliberate concealment of material
evidence. However, there is no basis on which
Plaintiffs can assert a § 1983 claim for an additional,
separate Fourteenth Amendment violation for
concealment of exculpatory evidence during an
investigation, and this claim in Count 7 will
therefore be dismissed as to all Defendants against
whom it is asserted.
191a
Count 8:
Interfering with Right to Engage in
Political Processes in Violation of
42 U.S.C. § 1983 and Conspiracy,
asserted against Steel, Brodhead,
Burness, Duke and “Unknown
Duke University Employees”
In Count 8, Plaintiffs assert a claim under 42
U.S.C. § 1983 for “Interfering with the Right to
Engage in Political Processes.” As the basis for this
claim, Plaintiffs allege that Steel, Brodhead, Trask,36
and Burness, acting under color of state law,
directed unknown Duke employees and Duke Police
Officers to “direct team members who were
registering students and other Durham residents to
vote in the then upcoming federal and state elections
to abandon their registration efforts, surrender their
voter registration forms, and take off their shirts,
which read ‘Voice Your Choice.’” (Second Am. Compl.
¶ 988). Plaintiffs allege that the conduct evinced a
reckless disregard for and deliberate indifference to
Plaintiffs’ rights, and deprived Plaintiffs of their
rights under Article IV of the Constitution and the
First and Fourteenth Amendments.
In considering claims involving alleged
violations of the First Amendment on private
property, the Supreme Court has held that “the
constitutional guarantee of free speech is a
guarantee only against abridgment by government,
federal or state. Thus, while statutory or common
law may in some situations extend protection or
provide redress against a private corporation or
Although listed in the allegations, Trask is not
included as a Defendant on this Count.
36
192a
person who seeks to abridge the free expression of
others, no such protection or redress is provided by
the Constitution itself.” Hudgens v. NLRB, 424 U.S.
507, 513, 96 S. Ct. 1029, 1033, 46 L. Ed. 2d 196
(1976) (internal citations omitted); Lloyd Corp. v.
Tanner, 407 U.S. 551, 567-70, 92 S. Ct. 2219, 222829, 33 L. Ed. 2d 131 (1972). Under these decisions,
“[b]efore an owner of private property can be
subjected to the commands of the First and
Fourteenth Amendments the privately owned
property must assume to some significant degree the
functional attributes of public property devoted to
public use.” Cent. Hardware Co. v. NLRB, 407 U.S.
539, 547, 92 S. Ct. 2238, 2243, 33 L. Ed. 2d 122
(1972).
In the present case, all of the alleged conduct
with respect to Count 8 is alleged to have occurred
on the campus of Duke University and to have been
committed by Duke employees at the direction of
Duke administrators. Thus, the alleged conduct
involves actions by Duke, not the government, to
control the types of speech the Duke would allow on
its own property. The claim is asserted against Duke
administrators Steel, Brodhead, and Burness. In
these circumstances, having considered Plaintiffs’
allegations, the Court concludes that a claim against
these private university administrators for actions it
takes on its own campus cannot support a claim for
violation of the First Amendment. The action taken
by Duke and its employees – at the direction of Duke
administrators - is not plausibly alleged to be
government action taken “under color of state law”
193a
under § 1983.37 Therefore, the Motion to Dismiss
Count 8 will be granted, and the claims alleged in
Count 8 will be dismissed.
Count 9:
Retaliation in Violation of 42 U.S.C.
§ 1983 and Conspiracy, asserted
against Nifong, Gottlieb, Himan,
Addison, Michael, Hodge, Steel,
Brodhead,
Burness,
Lange,
Stotsenberg, Smith, Best, Fleming,
Schwab,
Garber,
Cooper,
Humphries,
Dean,
Graves,
Dawkins,
Trask,
Duke,
Duke
Health, Private Diagnostic, and the
City
In Count 9, Plaintiffs assert a claim under 42
U.S.C. § 1983 for “Retaliation.” As the basis for this
claim, Plaintiffs allege that all of the Defendants
named in this Count “directed, participated,
condoned or ratified the violations of Plaintiffs’
constitutional rights as alleged herein in retaliation
for Plaintiffs’ decision to exercise their constitutional
right not to submit to police interrogation without
the benefit of counsel.” (Second Am. Compl. ¶ 994).
Plaintiffs allege that Nifong, Gottlieb, and Himan
retaliated against Plaintiffs by “causing court orders
to be issued based upon fabricated sworn Affidavits”
including the NTO and Search Warrant. (Second
Am. Compl. ¶ 995). Plaintiffs further allege that
Plaintiffs also contend that this action violated
“federal voter registration law.” However, Plaintiffs do not
identify what law they contend was violated. Moreover, as
noted above, the action allegedly taken by Duke administrators
was not action by the government and cannot support a claim
under § 1983 for action taken “under color of state law.”
37
194a
Nifong, Gottlieb, Levicy, Arico, and Manly retaliated
against Plaintiffs by concealing forensic medical
evidence and fabricating false and misleading
forensic medical evidence. Plaintiffs also allege that
Nifong, Gottlieb, Himan, and Clayton retaliated
against Plaintiffs by intimidating witnesses and
coercing witnesses to make false statements.
Plaintiffs allege that Steel, Nifong, and the Duke
Police supervisors (Best, Fleming, Schwab, Garber,
Cooper, Humphries, Dean, Graves, Dawkins, Trask,
and Brodhead) retaliated against Plaintiffs by
directing Duke Police Officers to produce reports
concealing the officers’ exculpatory observations of
Mangum at the hospital on March 14. Plaintiffs
contend that Defendants’ conduct evinced a
malicious and corrupt intent and callous disregard
for or deliberate indifference to Plaintiffs’ rights, and
deprived Plaintiffs of their rights under Article IV of
the Constitution and the First, Fourth, Fifth, and
Fourteenth Amendments.
However, as discussed with respect to Count
3, to the extent that Plaintiffs allege that their
Fourth Amendment rights were violated by the
deliberate or reckless use of false and misleading
information to obtain a search warrant and NTO
that were not supported by probable cause, those
claims have already been considered in Counts 1 and
2. Although Plaintiffs also raise additional
contentions in Count 9 (as in Count 3) regarding the
officers’ subjective motivations, an officer’s improper
motives do not establish a Fourth Amendment
violation, and police can arrest citizens if probable
cause exists to support the arrest, regardless of the
officers’ subjective motivations. See Rogers v.
195a
Pendleton, 249 F.3d 279, 290 (4th Cir. 2001); Whren
v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769,
1774, 135 L. Ed. 2d 89 (1996); cf. Hartman v. Moore,
547 U.S. 250, 260-62, 126 S. Ct. 1695, 1703-05, 164
L. Ed. 2d 441 (2006) (finding that there could be no
constitutional claim for “retaliatory prosecution,”
regardless of the officers’ motivation, if there was
probable cause to support the prosecution). Thus, if a
search or seizure is properly supported by probable
cause, there is no separate Fourth Amendment
violation based on the officers’ subjective
motivations. As such, Plaintiffs cannot state a claim
for retaliation under the Fourth Amendment, and
any Fourth Amendment claims must be analyzed
under the standards set out in Counts 1 and 2.38
Moreover, to the extent that Plaintiffs’ claim
in Count 9 is based on alleged retaliation against
them for their decision not to submit to voluntary,
uncounseled interviews with police officers, the
Court notes that the right not to speak to police
officers is derived from the Fifth Amendment
privilege against self-incrimination, but that right is
not violated unless the results of the interview are
used against the individual in a criminal proceeding.
See Thompson v. Keohane, 516 U.S. 99, 107, 116 S.
Ct. 457, 462-63, 133 L. Ed. 2d 383 (1995); Miranda v.
Arizona, 384 U.S. 436, 467-69, 86 S. Ct. 1602, 162425, 16 L. Ed. 2d 694 (1966); Burrell v. Virginia, 395
In addition, as discussed with respect to Counts 6
and 7, there is no separate Fourteenth Amendment violation
for fabrication of false evidence or concealment of exculpatory
evidence during an investigation prior to any trial or arrest,
regardless of the officers’ motivation, unless that misconduct
actually deprives a citizen of a constitutionally-protected
liberty or property interest.
38
196a
F.3d 508, 512-14 (4th Cir. 2005). Thus, Plaintiffs
have not stated a claim for violation of their Fifth
Amendment rights. Plaintiffs do not assert
otherwise, and in their Response Briefs, Plaintiffs do
not attempt to present any authority recognizing a
§ 1983 claim for “retaliation” against an individual
for exercise of his Fifth Amendment rights.
Instead, Plaintiffs contend that the claim in
Count 9 is a claim for retaliation against them for
exercising their constitutionally-protected First
Amendment free speech rights. In this regard, the
Fourth Circuit has recognized a potential § 1983
“retaliation” claim in cases where government
officials retaliate against government employees or
other citizens for exercise of their free speech rights.
See The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410,
4116-17 (4th Cir. 2006) (recognizing a potential
§ 1983 claim based on retaliation by government
officials against a reporter, but noting that “the
retaliation cause of action must be administered to
balance governmental and private interests so as not
to impose liability in everyday, run-of-the-mill
encounters”). Such a claim requires a plaintiff
to establish “[1] that his or her speech was
protected[,] . . . [2] that the defendant’s alleged
retaliatory action adversely affected the plaintiff’s
constitutionally protected speech[,] [and] . . . [3] that
a causal relationship exists between its speech and
the defendant’s retaliatory action.” Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)
(internal citations omitted). Plaintiffs contend that
they can state such a First Amendment retaliation
claim because Defendants retaliated against them
for exercising their right “not to speak.” See Wooley
197a
v. Maynard, 430 U.S. 705, 714-16, 97 S. CT. 1428,
1435-36, 51 L. Ed. 2d 752 (1977) (recognizing a First
Amendment right “to refrain from speaking” with
respect to a state motto on a license plate). However,
this “right not to speak” has been limited to the
context of government-compelled speech with respect
to a particular political or ideological message. See
United States v. Sindel, 53 F.3d 874, 878 (8th Cir.
1995) (noting that “[a] First Amendment protection
against compelled speech . . . has been found only in
the context of governmental compulsion to
disseminate a particular political or ideological
message” and “[t]here is no right to refrain from
speaking when ‘essential operations of government
may require it for the preservation of an orderly
society,-as in the case of compulsion to give evidence
in court.’” (quoting West Virginia State Bd. of Educ.
v. Barnette, 319 U.S. 624, 645, 63 S. Ct. 1178, 1189,
87 L. Ed. 2d 1628 (1943) (Murphy, J., concurring)));
Kania v. Fordham, 702 F.2d 475, 478 n.6 (4th Cir.
1983). Plaintiffs cite no authority to support the
application of the First Amendment protection
against government-compelled ideological or political
speech into the context of police interviews, which
are covered by the more specific protections of the
Fourth, Fifth, and Sixth Amendments. Therefore,
the Court rejects Plaintiffs’ legal contention that
declining to speak to police officers during a criminal
investigation raises First Amendment protections.
Moreover, even if this novel interpretation of the
First Amendment were accepted, there was no
clearly established First Amendment right not to
speak to police officers at the time of the conduct
alleged in the Second Amended Complaint, and
therefore a reasonable police officer would not have
198a
known that First Amendment protections applied in
that situation. As such, qualified immunity would
apply in any event.39 Therefore, the Court concludes
that Plaintiffs have failed to state any separate
§ 1983 claim for “retaliation” in violation of the First
Amendment, and this claim will therefore be
dismissed.
Count 10:
Deprivation of the Privileges and
Immunities of North Carolina
Citizens in Violation of 42 U.S.C.
§ 1983, asserted against “all
Defendants in their individual and
official capacities”
In Count 10, Plaintiffs assert a claim under 42
U.S.C. § 1983 alleging that Defendants’ conduct
deprived Plaintiffs of the “same privileges and
immunities they bestowed upon similarly situated
citizens of the State of North Carolina because of
Plaintiffs’ real or perceived status as citizens of other
states.” (Second Am. Compl. ¶ 1004). Plaintiffs allege
that Defendants’ conduct was “not closely tailored or
rationally related to any legitimate or substantial
state interest” and deprived Plaintiffs of their rights
under Article IV of the Constitution and the
Fourteenth Amendment. (Second Am. Compl.
¶ 1005-1006).
Of course, as discussed in Count 3, police officers may
not arrest, search, or otherwise seize an individual simply for
refusing consent to an interview or a search. However, violation
of that right is discussed under the standards applicable to
Fourth Amendment claims, as set out at length in Counts 1, 2,
and 3.
39
199a
Article IV of the Constitution provides that
“[t]he Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several
States.” U.S. Const art. IV, § 2. Pursuant to this
provision, “a citizen of one State who travels in other
States, intending to return home at the end of his
journey, is entitled to enjoy the ‘Privileges and
Immunities of Citizens in the several States’ that he
visits. This provision removes ‘from the citizens of
each State the disabilities of alienage in the other
States.’” Saenz v. Roe, 526 U.S. 489, 501, 119 S. Ct.
1518, 1525, 143 L. Ed. 2d 689 (1999) (quoting Paul v.
Virginia, 75 (8 Wall.) 168, 180, 19 L. Ed. 357
(1868)). This provision “was designed to insure to a
citizen of State A who ventures into State B the
same privileges which the citizens of State B enjoy.”
Toomer v. Witsell, 334 U.S. 385, 395, 68 S. Ct. 1156,
1162, 92 L. Ed. 1460 (1948). Thus, a state may not
discriminate against nonresidents with respect to
the privileges and immunities it provides to its own
citizens unless there is a sufficient justification for
the discrimination.
In their briefing in support of Count 10,
Plaintiffs contend that this claim invokes the “right
to travel,” including (1) the right of a citizen of one
State to enter and to leave another State, (2) the
right to be treated as a welcome visitor rather than
an unfriendly alien when temporarily present in the
second State, and (3) for travelers who elect to
become residents of a new State, the right to be
treated like other citizens of that State. However,
Plaintiffs do not cite any cases in which a burden on
the “right to travel” was recognized in circumstances
analogous to those claimed here. Moreover, the
200a
Privileges and Immunities Clause does not protect
citizens of a state from actions of their own state.
See Goldfarb v. Supreme Court of Virginia, 766 F.2d
859, 864-65 (4th Cir. 1985) (“[T]he Privileges and
Immunities Clause provides ‘no security for the
citizen of the State in which [the privileges] were
claimed.’” (quoting The Slaughterhouse Cases, 83
U.S. (16 Wall.) 36, 77, 21 L. Ed. 394 (1873))); United
Bldg. & Constr. Trades Council v. Camden, 465 U.S.
208, 217, 104 S. Ct. 1020, 1027, 79 L. Ed. 2d 249
(1984). Of the three Plaintiffs in this suit, one of
them, Plaintiff Matthew Wilson, is a North Carolina
resident who was a “permanent resident” of
Durham. Plaintiffs contend that Matthew Wilson
was nevertheless discriminated against as a Duke
Student who was “perceived” to be an out-ofstate
resident. However, the Court concludes that the
facts set out in the Second Amended Complaint
would, at most, support the assertion that Plaintiffs
were singled out or discriminated against because
they were Duke Students, not because they were
out-of-state residents. Plaintiffs allege that the City
adopted a “Zero Tolerance” policy that involved
excessive penalties and criminal enforcement
against Duke Students, particularly in the
neighborhood areas outside of campus. However, to
the extent that any distinction at all was made in
enforcement of the criminal laws under the facts
alleged by Plaintiffs, the distinction was made
between Duke Students (regardless of where they
were from) and non-students who were “permanent
residents” of the neighborhoods around campus.
There is no plausible claim that Plaintiffs were
discriminated against on the basis of their status as
out-of-state residents, and instead any alleged
201a
discrimination was based on their status as Duke
Students, applied equally to all Duke Students
(including Plaintiff Matthew Wilson, a permanent
resident of Durham), regardless of where they were
from. Thus, Plaintiffs have failed to allege facts to
support the contention that the government made
any distinction in the way that they were treated
based on residency. Therefore, the Court concludes
that Plaintiffs have not stated any plausible claim
for violation of the Privileges and Immunities
Clause, and Count 10 will be dismissed.
Count 11:
Failure to Prevent Deprivation of
Constitutional Rights in Violation
of 42 U.S.C. § 1983, asserted against
Steel, Brodhead, Lange, Trask,
Burness, Moneta, Dzau, Haltom,
Dawkins,
Graves,
Dean,
Humphries,
Cooper,
Garber,
Schwab, Fleming, Best, Smith,
Stotsenberg, Duke Police, Duke,
Baker, Chalmers, Hodge, Russ,
Mihaich, Council, Lamb, Ripberger,
Evans, Soukup, Michael, Addison,
Gottlieb, Himan, Wilson, Clayton
and the City
In Count 11, Plaintiffs bring claims under 42
U.S.C. § 1983 for “Failure to Prevent Deprivation of
Constitutional Rights” raising issues of “bystander
liability.” Plaintiffs divide this claim into five
sections. First, Plaintiffs assert claims against the
Duke Police Defendants (Brodhead, Trask, Dawkins,
Graves, Dean, Humphries, Cooper, Garber, Schwab,
Fleming, Best, Smith, and Stotsenberg) in their
202a
individual and official capacities, alleging that
Plaintiffs were subjected to violations of their
constitutional rights by Duke and Durham officers,
and that these Defendants were present and knew of
the violations and had a reasonable opportunity to
prevent the harm but “turned a blind eye” and did
nothing. Second, Plaintiffs assert claims against
Steel, Brodhead, Trask, and the other Duke Police
supervisors (Dawkins, Graves, Dean, Humphries,
Cooper, Garber, Schwab, Fleming and Best), in their
individual and official capacities, alleging that these
Defendants had “shared final policymaking
authority” for Duke and were aware of the violations
of Plaintiffs’ rights but directed all Duke Police
officers to do nothing. Third, Plaintiffs assert claims
against Durham Police Defendants (Baker,
Chalmers, Hodge, Russ, Mihaich, Council, Lamb,
Ripberger, Evans, Soukup, Michael, Addison,
Gottlieb, Himan, Wilson, and Clayton) alleging that
Plaintiffs were subjected to violations of their
constitutional rights by Duke and Durham officers,
and that these Defendants were present or knew of
the violations and had a reasonable opportunity to
prevent the harm but “turned a blind eye” and did
nothing. Fourth, Plaintiffs assert claims against
Durham supervisors (Baker, Chalmers, Hodge, Russ,
Mihaich, Council, Lamb, Ripberger, Evans, and
Soukup) and the City, alleging that these
Defendants had “final policymaking authority” and
were aware of the violations of Plaintiffs’ rights but
directed Durham Police officers to do nothing. Fifth,
Plaintiffs assert claims against Duke and the City
alleging that Duke and the City “had an established
policy or custom whereby Duke Police Officers and
Durham Police Officers, as a rule, did not act to
203a
prevent violations of Duke students’ constitutional
rights occurring in their presence or within their
knowledge,” and that this policy led to the violations
of Plaintiffs’ constitutional rights in this case.
(Second Am. Compl. ¶ 1032-1033).
In considering these contentions, the Court
notes that the Fifth contention, which asserts a
claim against Duke and the City based on an
“established policy or custom,” is an attempt to
establish liability under Monell and is therefore
considered as part of Count 12. In addition, the
Court concludes that the Second and Fourth
contentions against the supervisors with “final
policymaking authority” are also attempts to
establish liability of Duke or the City under Monell
and are therefore also considered as part of Count
12.40 The First and Third contentions raise claims
against the Duke Police Defendants and the Durham
Police Defendants alleging that these Defendants
were “present and/or knew” of the constitutional
violations and had a reasonable opportunity to
prevent the harm but “turned a blind eye” and did
nothing, raising a theory of “bystander liability,” and
those claims will therefore be addressed here as part
of Count 11.
As discussed previously, “an officer may be
liable under § 1983, on a theory of bystander
In addition, to the extent that these Second and
Fourth contentions may also be attempts to state a claim for
“supervisory liability,” the conclusions set out in Count 13
would apply. Similarly as to the Third contention related to the
Durham Police Defendants, Plaintiffs’ allegations regarding
authority and delegation of authority are considered as part of
the supervisory liability raised in Count 13.
40
204a
liability, if he: (1) knows that a fellow officer is
violating an individual’s constitutional rights; (2) has
a reasonable opportunity to prevent the harm; and
(3) chooses not to act.” See Randall v. Prince
George’s County, 302 F.3d 188, 202-04 (4th Cir.
2002). However, the Supreme Court in Ashcroft v.
Iqbal reiterated that in a § 1983 suit, “a plaintiff
must plead that each Government-official defendant,
through the officials’ own individual actions, has
violated the Constitution.” 129 S. Ct. 1937, 1948, 173
L. Ed. 2d 868 (2009) (emphasis added). Thus, to be
liable for a constitutional violation under § 1983,
each individual defendant must have had the
requisite intent to violate Plaintiffs’ constitutional
rights. See id. at 1948-49 (noting that each
government actor “is only liable for his or her own
misconduct” which requires the requisite intent for
the type of constitutional violation pled). Therefore,
“bystanders” cannot be liable under § 1983 for
simply negligent conduct in failing to intervene.
Instead, the bystander must have been present for
the violation, with a reasonable opportunity to
intervene, and must have had the requisite intent to
violate the citizen’s constitutional rights.
In addition, under Iqbal, the allegations must
offer more than “labels and conclusions” or “naked
assertions” or “a formulaic recitation of the elements
of a cause of action.” Id. at 1949 (internal quotations
omitted). The allegations must instead include
specific factual allegations. Moreover, the facts pled
must not be “merely consistent with a defendant’s
liability” and instead must be sufficient to state a
plausible entitlement to relief. Id. (internal
quotations omitted).
205a
In the present case, the Court has concluded
that Plaintiffs have stated a potential claim for an
unconstitutional search and seizure as alleged in
Counts 1 and 2, and for reputational injury suffered
as a result of intentionally false public statements
made in connection with the allegedly unlawful
seizure without due process of law, as alleged in
Count 5. These claims include, as discussed with
respect to Count 2, a potential “bystander liability”
claim with respect to Sergeant Smith, based on
allegations that he was present for an unlawful
search and based on allegations that he had the
requisite knowledge and intent.
However, the claims asserted by Plaintiffs in
Count 11 are “group” claims asserting liability
against 29 Defendants41 for their alleged conduct in
“turning a blind eye” to the “constitutional
violations,” without specifying which alleged
constitutional violations were at issue, or what
conduct any particular individual Defendant “turned
a blind eye” toward. Plaintiffs nevertheless contend
that they have sufficiently stated a claim against all
of the named Defendants because they allege that
the Defendants knew that other officers were
conspiring to violate Plaintiffs’ constitutional rights,
had a reasonable opportunity to intervene, and failed
to intervene. However, the Court concludes that
This Count is asserted against 38 Defendants, but
the factual allegations are “group” allegations that make
allegations against groups that include 29 individual
Defendants. Although Count 11 is also asserted against the
Crisis Management Defendants (Steel, Brodhead, Lange,
Trask, Burness, Moneta, Dzau, and Haltom), Plaintiffs do not
include Lange, Burness, Moneta, Dzau and Haltom in any of
the five groups against whom the allegations are made.
41
206a
these general, conclusory “group” allegations are not
a sufficient basis to impose bystander liability on all
29 Defendants. Indeed, these “group” allegations do
not even put the individual defendants on
reasonable notice as to what their involvement is
actually alleged to have been. Moreover, the Court
further concludes that the facts as alleged do not
state a plausible claim that all 29 named Defendants
were present, had a reasonable opportunity to
intervene, and intentionally or recklessly violated
Plaintiffs’ constitutional rights with respect to the
claims asserted in Counts 1, 2, and 5.42 The general
nature of Plaintiffs’ sweeping allegations inhibits
any further ability by the Court to determine which
named Defendants are alleged to have been present
and able to intervene with respect to Counts 1, 2,
and 5, other than the particular Defendants named
and discussed in those respective counts. In that
regard, the Court notes that the claims in Counts 1
and 2 are going forward as to Defendants Nifong,
Himan, Gottlieb, and Levicy, and also against
Defendant Smith in Count 2, and those claims would
42 In this regard, the Court notes that it was Plaintiffs’
decision to allege claims against 50 Defendants based on
multiple alleged constitutional violations under § 1983, many of
which failed to state a claim under applicable legal standards
as discussed herein. In addition, Plaintiffs in this “bystander
liability” claim elected to assert group allegations against 29
Defendants, alleging that all of the group members failed to
intervene to prevent violation of Plaintiffs’ “constitutional
rights,” without distinctions among the individual Defendants
or the particular constitutional violations they allegedly failed
to prevent. The burden is on Plaintiffs to state their claim and
the factual basis for their claim as to individual Defendants
and specific claims, and “group claims” based on
undistinguished “constitutional violations” do not provide
sufficient notice or basis for a separate claim.
207a
include potential “bystander” and “conspiracy”
liability as to those Defendants on those claims.
Similarly, the claims in Count 5 are going forward as
to Nifong, Gottlieb, Addison, Hodge, and Wilson. As
to Defendant Clayton, Plaintiffs contend that
Clayton participated in the search challenged as part
of Count 2.43 Plaintiffs also contend in their
Response Brief that Clayton knew the search was
not supported by probable cause, but Plaintiffs do
not contend that Clayton knew that Gottlieb and
Himan had falsified the material allegations in the
warrant affidavit. Therefore, the Court concludes
that Plaintiffs have not stated a separate “bystander
liability” claim as to Clayton.
Thus, having reviewed the Second Amended
Complaint and Plaintiffs’ Response Briefs, the Court
concludes that the “group” allegations are
insufficient and conclusory, and Plaintiffs have not
sufficiently stated a “bystander liability” claim with
respect to Counts 1, 2, and 5 as to the multiple
Defendants against whom this claim is asserted
(Steel, Brodhead, Lange, Trask, Burness, Moneta,
Dzau, Haltom, Dawkins, Graves, Dean, Humphries,
Cooper, Garber, Schwab, Fleming, Best, Smith,
Stotsenberg, Duke Police, Duke, Baker, Chalmers,
Hodge, Russ, Mihaich, Council, Lamb, Ripberger,
Evans, Soukup, Michael, Addison, Gottlieb, Himan,
Wilson, Clayton and the City). The burden is on
Plaintiffs to make sufficient allegations to support a
plausible claim as to each named Defendant, and
The Court notes that Clayton is also alleged to have
participated with respect to the claims asserted in Counts 4, 6,
and 7, but those claims have been dismissed.
43
208a
Plaintiffs have failed to do so here.44 Therefore, the
Court will dismiss the general “bystander” claims
alleged in Count 11.45
Count 12:
Monell Liability for Violations of 42
U.S.C. § 1983, asserted against the
City and Duke
In Count 12, Plaintiffs assert their § 1983
claims against the City and against Duke under
Monell v. Department of Social Services, 436 U.S.
658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
Pursuant to Monell, a municipality is not vicariously
liable under § 1983 for actions of its employees;
instead, a municipality is only liable under § 1983 if
the alleged constitutional violations were the result
44 The Court further notes that in their Response
Briefs, Plaintiffs assert their “bystander liability” claims
against the Duke Police Defendants based on contentions that
Duke Police “abdicated their authority” under the
Jurisdictional Agreement with Durham Police. However, as
discussed with respect to Counts 12 and 13, under state law the
Durham Police had their own statutory authority to proceed
with the investigation, and the Jurisdictional Agreement does
not, as a matter of law, impair that authority or provide the
Duke Police with supervisory authority or any other basis on
which to intervene in a Durham Police investigation.
Although the “group claims” in Count 11 are being
dismissed, the claims in Counts 1 and 2 are going forward as to
Defendants Nifong, Himan, Gottlieb, and Levicy, and also
against Defendant Smith in Count 2, and those claims would
include potential “bystander” and “conspiracy” liability as to
those Defendants on those claims, as discussed with respect to
those Counts. Similarly, the claims in Count 5 are going
forward as to Nifong, Gottlieb, Addison, Hodge, and Wilson.
However, no separate “bystander” claims are going forward as
a separate claim in Count 11.
45
209a
of a municipal policy or practice. A municipality may
be liable under § 1983 “when execution of a
government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the
injury.” Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38.
A plaintiff can establish liability under Monell where
the constitutional injury is proximately caused by a
written policy or ordinance, or by a widespread
practice that is “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.”
City of St. Louis v. Praprotnik, 485 U.S. 112, 127,
108 S. Ct. 915, 926, 99 L. Ed. 2d 107 (1988) (citation
omitted). In addition, the Supreme Court has also
recognized that liability may be imposed on a
municipality where the constitutional injury is
proximately caused by the decision of an official with
final policymaking authority, that is, an official with
authority to establish and implement municipal
policy in that area. Id. at 127, 108 S. Ct. at 926.
Finally, municipal liability has been recognized
based on inadequate training or supervision of
employees if the training or supervision was so
inadequate as to establish “deliberate indifference”
to the rights of citizens and if the deficiency caused
the constitutional violation alleged. See City of
Canton v. Harris, 489 U.S. 378, 390-92, 109 S. Ct.
1197, 1206, 103 L. Ed. 2d 412 (1989). In sum, “[a]
policy or custom for which a municipality may be
held liable can arise in four ways: (1) through an
express policy, such as a written ordinance or
regulation; (2) through the decisions of a person with
final policymaking authority; (3) through an
omission, such as a failure to properly train officers,
that ‘manifest[s] deliberate indifference to the rights
210a
of citizens’; or (4) through a practice that is so
‘persistent and widespread’ as to constitute a ‘custom
or usage with the force of law.’” Lytle v. Doyle, 326
F.3d 463, 471 (4th Cir. 2003) (quoting Carter v.
Morris, 164 F.3d 215, 218 (4th Cir. 1999)). Such a
claim only exists if, “through its deliberate conduct,
the municipality was the “moving force” behind the
injury alleged. That is, a plaintiff must show that
the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct
causal link between the municipal action and the
deprivation of federal rights.” Bd. of the County
Comm’rs of Bryan County v. Brown, 520 U.S. 397,
404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626 (1997).
To impose municipal liability based on the
decision of a final policymaking official, the final
policymaking official must have been “aware of the
constitutional violation and either participated in, or
otherwise condoned, it.” Love-Lane v. Martin, 355
F.3d 766, 783 (4th Cir. 2004). This includes
situations where “the authorized policymakers
approve a subordinate’s decision and the basis for
it,” since “their ratification would be chargeable to
the municipality because their decision is final.”
Praprotnik, 485 U.S. at 127. Thus, liability may be
imposed where the final policymaking official
intentionally participates in or ratifies the
constitutional violation. In addition, where a final
policymaking official makes a decision or acts in a
manner that is not in itself unconstitutional, liability
may still exist if the final policymaking official acts
with “deliberate indifference to the risk that a
violation of a particular constitutional or statutory
right will follow the decision.” Bd. of the County
211a
Comm’rs of Bryan County, 520 U.S. at 411, 117 S.
Ct. at 1392; see also Carter v. Morris, 164 F.3d 215,
218-19 (4th Cir. 1999) (describing the required
connection between the official’s deliberate
indifference and the ultimate constitutional
violation).
In the present case, as the basis for Count 12,
Plaintiffs allege that: (A) City and University
policies were the moving force behind the
deprivations of Plaintiffs’ constitutional rights; (B)
officials
with
final
policymaking
authority
participated in or directed the violations of Plaintiffs’
constitutional rights; and (C) Duke and City 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. With respect to the first contention, that
City and University policies were the moving force
behind the deprivations of Plaintiffs’ constitutional
rights, Plaintiffs allege that the moving force behind
the violations was a “Zero-Tolerance” policy, agreed
to by the City and Duke, pursuant to which
“Durham Police and Duke Police would target Duke
Students who lived or strayed off-campus for
disproportionate enforcement of the criminal laws.”
(Second Am. Compl. ¶ 108). Plaintiffs allege that as
part of this policy, Nifong agreed to “observe a ‘no
drop’ policy, pursuant to which his office refused to
unilaterally dismiss charges brought against Duke
students” in the neighborhoods outside the Duke
campus. (Second Am. Compl. ¶ 114). Plaintiffs allege
that pursuant to this policy, Durham Police
212a
conducted searches and seizures of students during
“raids” on homes occupied by Duke Students in the
neighborhoods around campus in August 2005.
(Second Am. Compl. ¶ 116-137). Plaintiffs allege that
all of the charges related to these “raids” were
ultimately dismissed when a state court judge
determined that the actions by the Durham Police
were unconstitutional. Plaintiffs contend that soon
thereafter, enforcement of this policy led to a violent
raid by Durham Police of students at a pool at a
neighborhood apartment complex, which Plaintiffs
contend was later determined by a state court to be
an unprovoked, violent assault by Durham Police on
a Duke Student at his own apartment complex.
(Second Am. Compl. ¶ 138-144). Plaintiffs contend
that because the officers involved in these various
unconstitutional actions were not corrected,
reprimanded, or terminated, and because the policy
was instead “re-ratified and re-condoned” by the
commanding officers, the Durham police officers
were emboldened in their targeting of Duke
Students. (Second Am. Compl. ¶ 143, 169). Plaintiffs
contend that a few weeks later, pursuant to the ZeroTolerance Policy, and consistent with the “escalating
targeting” of Duke Students, Gottlieb was involved
in obtaining baseless arrest warrants for Duke
Students at another neighborhood property.
Plaintiffs allege that Gottlieb executed the warrant
at 3:00 a.m. and handcuffed the students sleeping
there, ultimately transporting them to the Durham
County Jail and charging them with violations of the
noise and open container ordinances. Plaintiffs
contend that despite a lack of evidence, Gottlieb and
Nifong participated in baseless prosecutions
resulting in acquittals (Second Am. Compl. ¶ 145-
213a
159). Plaintiffs further allege that in January 2006,
a 911 caller reported a “banging” near the trash cans
at 610 N. Buchanan, and that the Durham Police
officer who arrived told the residents he had a
“‘directive from [his] supervisor’ to charge the
residents with misdemeanor violations of the City
Noise Ordinance, regardless of whether any
violations had, in fact, occurred.” (Second Am.
Compl. ¶ 165-168).
Based on these prior incidents, Plaintiffs
allege that the “Zero Tolerance Policy” encouraged
and authorized officers to execute warrantless raids
of Duke Students’ homes, obtain warrants and other
legal
process
against
Duke
Students
for
unauthorized purposes, subject Duke Students to
unconstitutional searches and seizures in the
absence of probable cause for the purpose of publicly
humiliating or abusing the Duke Students, fabricate
witness accounts of events to obtain convictions of
Duke Students, “turn a blind eye” to the deprivation
of Duke Students’ constitutional rights, and retaliate
against officers who acted to prevent the deprivation
of students’ constitutional rights. Plaintiffs allege
that this policy was ratified by Durham Police
Captain Lamb and by his predecessor Captain
Sarvis. In addition, Plaintiffs allege that Baker was
another policymaker who developed the policy.
Plaintiffs allege that it was clear that the policy
would lead to a deprivation of Plaintiffs’
constitutional rights and that as a direct and
foreseeable consequence of the Zero-Tolerance policy,
Plaintiffs were deprived of their rights under Article
IV of the Constitution and the First, Fourth, Fifth,
214a
and Fourteenth Amendments. (Second Am. Compl. ¶
1045).
With respect to Plaintiffs’ contention that
Monell liability should attach because “officials with
final policymaking authority participated in or
directed the violations of Plaintiffs’ constitutional
rights,” Plaintiffs allege that Duke Officials with
final policymaking authority, including Steel,
Brodhead, Lange, Trask, Burness, Moneta, Dzau,
Haltom, Dawkins, Graves, Dean, Humphries,
Cooper, Garber, Schwab, Fleming, Best, Arico, and
Manly “all directed conduct that directly and
proximately caused the deprivation of Plaintiffs’
constitutional rights.” (Second Am. Compl. ¶ 1062).
As to the City, Plaintiffs allege that Baker was a
City official with final policymaking authority as to
the Police Department and his directives “created
the unreasonably high likelihood that Plaintiffs’
constitutional rights would be violated.” (Second Am.
Compl. ¶ 1063). In addition, throughout the claims
alleged, Plaintiffs contend that various intermediate
officials were “final policymaking officials” whose
conduct
or
decisions
violated
Plaintiffs’
constitutional rights.
Finally, Plaintiffs contend that Monell
liability should attach to both Duke and the City
because “Duke and City 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.” In this regard, Plaintiffs allege that Duke
215a
and Durham officials were aware of issues regarding
Gottlieb46 but still assigned him to supervise
Mangum’s allegations, in deliberate indifference to
the likelihood that their decision would result in a
violation of Plaintiffs’ constitutional rights. Plaintiffs
also allege that Durham and Duke officials delegated
their authority to Nifong, Gottlieb, Himan, Michael,
and Addison to conduct the investigation, and that
Duke Police delegated their “primary jurisdiction” to
those
individuals
who
violated
Plaintiffs’
constitutional rights. Plaintiffs allege that Durham
46 Plaintiffs allege that Gottlieb was “a known rogue
officer with a proclivity for abusing Duke students.” (Second
Am. Compl. ¶ 171-172). Plaintiffs allege that based on arrest
records and student accounts, “Gottlieb habitually arrested
Duke students in circumstances that a ‘permanent resident’
would not be arrested” and “Gottlieb’s interactions with Duke
students invariably involved violations of the student’s
constitutional rights.” (Second Am. Compl. ¶ 173- 174).
Plaintiffs further contend that “[i]n court, Gottlieb would
regularly fabricate his testimony to close holes in the State’s
case” or would “fabricate his account . . . solely to disparage the
student-defendant.” (Second Am. Compl. ¶ 175). Plaintiffs
therefore contend that Gottlieb’s continued assignment to areas
involving Duke Students “would almost certainly lead to
continued and more severe violations of the constitutional
rights of the Duke students he would encounter.” (Second Am.
Compl. ¶ 174). Plaintiffs allege that Gottlieb’s supervisors
knew of the details of Gottlieb’s abusive tactics and
disproportionate arrest record, but ratified Gottlieb’s behavior.
(Second Am. Compl. ¶ 180-183). Plaintiffs allege that this
information regarding Gottlieb was collected by Duke officials
and was reviewed on February 6, 2006, by Duke Defendants
Burness and Trask, who shared the information about Gottlieb
with Durham policymaking officials. (Second Am. Compl. ¶
177). Shortly thereafter, Chief Chalmers transferred Gottlieb to
a “desk job, as an on-call supervisor of property crimes
investigations,” but did not move him to a different district.
(Second Am. Compl. ¶ 178).
216a
officials
ratified
those
violations,
including
approving the abuse of the NTO process and warrant
process and approving the use of fabricated
affidavits. Plaintiffs also allege that Duke and
Durham officials agreed to allow Nifong to control
the investigation and agreed to direct Duke Police to
abandon its “jurisdictional responsibility” to
investigate the claims, even though it was “plainly
obvious” this would lead to a violation of Plaintiffs’
constitutional rights, and then “ratified and
condoned” Nifong’s conduct and failed to take
corrective action. In addition as to Nifong, Plaintiffs
also bring many of their claims against the City
based on the assertion that Nifong was acting in his
“official capacity” with respect to the City, and that
from March 24, 2006, through January 12, 2007, “by
virtue of delegated final policymaking authority from
the City of Durham, Nifong was acting as a City of
Durham supervisory official with final policymaking
authority with respect to the investigation of
Mangum’s false accusations.” (Second Am. Compl.
¶ 49). Plaintiffs further allege that Wilson, Nifong’s
investigator, shared that final policymaking
authority delegated from City officials. (Second Am.
Compl. ¶ 64).
Although “[t]he substantive requirements for
proof of municipal liability are stringent,” § 1983
claims are not subject to any heightened pleading
standard, and “primary reliance must be placed on
discovery controls and summary judgment to ferret
out before trial unmeritorious suits against
municipalities.” Jordan v. Jackson, 15 F.3d 333, 33840 (4th Cir. 1994). Thus, where a complaint alleges
the existence of municipal policies, alleges that
217a
officials with final policymaking authority condoned
and
ratified
unconstitutional
conduct
of
subordinates, and alleges that the policies
proximately caused the alleged constitutional
violation, the allegations are sufficient at the motion
to dismiss stage, although the “required showings
are appreciably more demanding” at summary
judgment. Jordan, 15 F.3d at 340.
Having considered Plaintiffs’ contentions in
the present case with respect to the City, the Court
concludes that Plaintiffs have sufficiently stated a
claim for Monell liability against the City at this
stage in the case. Specifically, the Court concludes
that Plaintiffs have alleged that enforcement of the
“Zero-Tolerance” policy led to multiple constitutional
violations against Duke Students, particularly by
Gottlieb, and that the City through its final
policymaking officials nevertheless continued the
policy and ratified and condoned those violations.
Plaintiffs have stated a plausible claim that this
condoning of constitutional violations in the
enforcement of the policy led to the constitutional
violations alleged by Plaintiffs in the present case.47
In addition to the “Zero-Tolerance Policy,” Plaintiffs
allege that Durham had “an established policy or custom of
expediting criminal investigations by subjecting the accused to
extortionate public condemnation and outrage through
inflammatory,
incendiary
and
stigmatizing
messages
transmitted through multiple mass communications devices,
including but not limited to broadcast emails, wide
dissemination of posters, and other media.” (Second Am.
Compl. ¶ 1046). Plaintiffs allege that City officials created
and/or condoned this policy by continuing to retain and promote
Addison, and by engaging in this conduct themselves as to
Graves and Hodge. However, the Court does not reach the issue
of whether these allegations are sufficient to state a Monell
47
218a
Whether evidence exists to support this contention is
not a question before the Court on the present
motions. Of course, at later stages in the case,
Plaintiffs will be required to present evidence to
support these contentions, including evidence to
establish the existence of an official policy or custom,
and proof that the policy was the cause of the
constitutional violation alleged here. See Jordan, 15
F.3d at 339-40. However, given the preliminary
stage of this case, the Court concludes that those
issues are more appropriately resolved at summary
judgment, since resolution of this issue will require
consideration of facts and proof beyond the
allegations in the Second Amended Complaint.
However, with respect to Plaintiffs’ contention
that Monell liability should attach based on
“delegation” to Nifong, or based on Nifong’s alleged
status as a “final policymaker” for the City, the
Court notes that “[w]hether a particular official has
‘final policymaking authority’ is a question of state
law,” and is “dependent on the definition of the
official’s functions under relevant state law.”
McMillian v. Monroe County, 520 U.S. 781, 786, 117
S. Ct. 1734, 1737, 138 L. Ed. 2d 1 (1997) (internal
citation omitted). “A municipal agency or official may
have final policymaking authority by direct
claim based on this policy, since the Court has already
determined that Plaintiffs have alleged a sufficient policy to
support a Monell claim at this stage in the case, as discussed
above. Any further consideration of this issue is therefore
reserved for summary judgment determination. Similarly, to
the extent that Plaintiffs contend that the City had a policy of
failing to act to intervene in ongoing constitutional violations,
the Court does not rely on that alleged policy, but those
contentions may be considered at summary judgment.
219a
delegation from the municipal lawmaking body, or
by conferral from higher authority” such as state
law. Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.
1987) (internal citations omitted); see also Pembaur
v. City of Cincinnati, 475 U.S. 469, 481-85, 106 S. Ct.
1292, 1299-1301, 89 L. Ed. 2d 452 (1986) (holding
that a County Prosecutor may be a final
policymaking official for the County where County
officials delegated authority to the Prosecutor and
state law authorized the County Prosecutor to
establish
county
policy
in
appropriate
circumstances). “Delegation may be express, as by a
formal job-description, or implied from a continued
course of knowing acquiescence by the governing
body in the exercise of policymaking authority by an
agency or official.” Spell, 824 F.2d at 1387 (internal
citations omitted); see also Praprotnik, 485 U.S. at
130, 108 S. Ct. at 927. (“[G]oing along with
discretionary decisions made by one’s subordinates .
. . is not a delegation to them of the authority to
make policy.”) In addition, in determining whether
an official has final policymaking authority in an
area, “[t]he most critical factor is not the practical
finality of an official’s ‘acts and edicts,’ but their
‘policy’ nature.” Spell, 824 F.2d at 1386 (noting that
policymaking authority is “authority to set and
implement general goals and programs of municipal
government, as opposed to discretionary authority in
purely operational aspects of government).
Under North Carolina law, the District
Attorneys are state actors who act on behalf of the
State of North Carolina and answer to the State
Attorney General. N.C. Const. art. IV, § 18(1); N.C.
Gen. Stat. § 7A-61, 69; see also Nivens v. Gilchrist,
220a
444 F.3d 237, 249 (4th Cir. 2006) (holding that a suit
against a District Attorney in his “official capacity”
in North Carolina is a suit against the State as is
therefore
subject
to
Eleventh
Amendment
immunity).
Although
the
Second
Amended
Complaint alleges that the City delegated authority
to Defendant Nifong to direct the investigation, the
Court concludes that delegation of authority to
supervise a particular investigation is not equal to
delegation of authority to set City law enforcement
policy. Moreover, there is no state law that would
allow a city to delegate its policymaking authority to
a state prosecutor, and only the state legislature has
authority to prescribe duties for District Attorneys or
supervise the District Attorney’s exercise of
authority. See N.C. Const. art. IV, § 18(1) (“The
District Attorney shall advise the officers of justice
in his district, be responsible for the prosecution on
behalf of the State of all criminal actions in the
Superior Courts of his district, perform such duties
related to appeals therefrom as the Attorney General
may require, and perform such other duties as the
General Assembly may prescribe.”); State v. Smith,
359 N.C. 199, 225, 607 S.E.2d 607, 625 (2005)
(Brady, J., concurring); Simeon v. Hardin, 339 N.C.
358, 373, 451 S.E.2d 858, 868 (1994) (“[T]he district
attorney’s duties, including the docketing of criminal
cases, are derived from statutes promulgated by the
General Assembly pursuant to authority granted in
Article IV, Section 18 of the North Carolina
Constitution.”). Therefore, the Court concludes that
the City could not have delegated its policymaking
authority to Nifong, and the claims against Nifong in
his “official capacity” are claims against the State,
221a
not the City.48 In light of this conclusion, the City
cannot be liable under § 1983 for “official capacity”
claims against Defendant Nifong or for alleged
conduct by Nifong as a “policymaker.” However, the
City is still responsible for its own policies that
result in constitutional violations by City employees,
even if the City employees were acting in
coordination with or at the direction of Nifong. As
noted above, Plaintiffs have alleged that the
constitutional injuries alleged in Counts 1, 2, and 5
were committed by City police officers, were
approved or ratified by City officials with final
policymaking authority for the City, and were the
result of City policies adopted by those City officials.
Therefore, although the Court rejects the legal
contention that Nifong had final policymaking
authority for the City or that the City delegated its
policymaking authority to Nifong, the Court has
nevertheless concluded that the Plaintiffs have
stated a claim against the City pursuant to Monell,
and any further consideration or determination of
whether liability can be established will be before
the Court at summary judgment.49 The Court notes,
The Court notes that Plaintiffs have not attempted to
name the State as a party in this case or otherwise bring this
suit against the State, since under the Eleventh Amendment,
the State is immune from suits brought in federal court, and
the State would not be a “person” subject to suit under § 1983.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109
S. Ct. 2304, 2312, 105 L. Ed.2d 45 (1989) (“We hold that neither
a State nor its officials acting in their official capacities are
‘persons’ under § 1983.”).
48
The Court notes that Plaintiffs have not alleged that
DSI or its employees had “final policymaking authority” for the
City. As discussed above, the City can only be liable for its own
49
222a
however, that a “Monell” claim is not in and of itself
a § 1983 claim, and is instead simply the basis for
holding the City liable for the underlying
constitutional violations. Therefore, the Court’s
conclusion as to this Monell claim against the City
simply means that the City is properly included as a
Defendant on Counts 1, 2, and 5.
However, with respect to the Monell claims
asserted against Duke, the Court notes again, as
discussed above, that Duke is a private party, and §
1983 claims are not intended to become a basis for
private tort claims. Instead, § 1983 claims arise
where the government acts to deprive a citizen of his
or her rights under the Constitution or laws of the
United States. As discussed above, “[t]he undercolor-of-state-law element of § 1983 excludes from its
reach ‘merely private conduct, no matter how
discriminatory or wrongful.’” American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977,
985, 143 L. Ed. 2d 130 (1999) (internal citations
omitted). “Misuse of power, possessed by virtue of
state law and made possible only because the
wrongdoer is clothed with the authority of state law,
is action taken ‘under color of’ state law.” United
States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031,
1043, 85 L. Ed. 1368 (1941). Thus “the party charged
with the deprivation must be a person who may
fairly be said to be a state actor . . . because he is a
state official, because he has acted together with or
has obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922,
policies, including decisions made by those with
policymaking authority for the City.
final
223a
937, 102 S. Ct. 2744, 2754, 73 L. Ed. 2d 482 (1982).
“Under th[e state-action or color-of-law] doctrine, we
‘insist []’ as a prerequisite to liability ‘that the
conduct allegedly causing the deprivation of a
federal right be fairly attributable to the State.’ By
doing so, we maintain the Bill of Rights as a shield
that protects private citizens from the excesses of
government, rather than a sword that they may use
to impose liability upon one another.” Phillips v. Pitt
County Mem. Hosp., 572 F.3d 176, 181 (4th Cir.
2009) (quoting Holly v. Scott, 434 F.3d 287, 291, 292
(4th Cir. 2006) (“Statutory and common law, rather
than the Constitution, traditionally govern
relationships between private parties.”)). Thus,
liability under § 1983 may be imposed for private
action only if “the private action ‘may be fairly
treated as that of the State itself.’” DeBauche v.
Trani, 191 F.3d 499, 507 (4th Cir. 1999) (citation
omitted); Jackson v. Pantazes, 810 F.2d 426, 429
(4th Cir. 1987). Therefore, Duke is only liable if it
was acting “under color of state law” and if its
actions can be treated as actions of the State itself.
Plaintiffs’ § 1983 claims against Duke are based on
three primary contentions. First, Plaintiffs contend
that Duke conspired and joined with the City in
adopting the “Zero-Tolerance” policy, and that Duke
is therefore responsible for the subsequent
constitutional violations. However, on this claim, the
Court finds that even if Duke, as a private
university, met with Durham Police regarding this
policy, and even agreed to such a policy, that is not
sufficient to transform Duke into a government
actor, or to treat Duke’s actions as the actions of the
“state itself,” or to hold Duke responsible for
constitutional violations committed Durham Police
224a
officers. Second, Plaintiffs also contend that Duke
adopted a policy (which Plaintiffs refer to as the
“Chairman’s Directive”) that it would be best for
Duke if Plaintiffs or their teammates were tried and
convicted. However, the Court likewise concludes
that these contentions fail to state a plausible claim
that this alleged directive converted Duke into a
state actor or caused the alleged constitutional
violations in Counts 1, 2, and 5. Third, to the extent
Plaintiffs point to “Joint Command” meetings
between Duke and Durham officials, the Second
Amended Complaint does not sufficiently allege how
those meetings made Duke a state actor responsible
for the alleged constitutional violations in Counts 1,
2, and 5. The Court has considered Plaintiffs’
contentions and concludes that these contentions fail
to state a plausible claim that Duke was a “state
actor” responsible for constitutional violations by
Durham Police officers. Cf. Rodriguez v. Smithfield
Packing Co., 338 F.3d 348, 356 (4th Cir. 2003). The
Court simply cannot extend § 1983 liability, which is
meant to be a limit on government action taken
“under color of state law,” to create federal liability
between private parties as Plaintiffs are attempting
to do here.
In addition, throughout the Second Amended
Complaint, Plaintiffs contend that Duke is
responsible for “delegating” authority to the City and
to Nifong to conduct the investigation. However, the
City and Nifong each had their own statutory
authority to conduct the investigation as they chose.
In support of their contention, Plaintiffs rely on the
“Jurisdictional Agreement” between the Duke Police
and Durham Police. Pursuant to this Agreement,
225a
Plaintiffs allege that Duke Police had “primary
jurisdiction” over the residence at 610 N. Buchanan,
and that Duke became responsible for constitutional
violations by the City and Nifong because Duke
“delegated” its “jurisdiction” to Nifong and the City.
However, as discussed above, under state law, Duke
could not have delegated “authority” to Nifong, and
Nifong could not have been acting in an “official
capacity” on behalf of the City or Duke. In addition,
the Court concludes that there is no plausible claim
that Duke delegated police powers or investigative
responsibility to the City. In this regard, as a matter
of state law, the Durham Police had complete
statutory authority under North Carolina law, on
campus and off. See N.C. Gen. Stat. § 15A-402; §
160A-286. The Jurisdictional Agreement between
the Durham Police and Duke Police could not reduce
the Durham Police Department’s statutory
authority, nor could it give the Duke Police any
authority over the Durham Police, even on campus
or in other areas around campus, regardless of
whether the Duke Police had “primary jurisdiction”
of an area under the Agreement. To the extent that
Plaintiffs allege that the Duke Police had authority
over the Durham Police or delegated authority to the
Durham Police, the Court finds that these are legal
conclusions that are inconsistent with North
Carolina law and that the Court is not bound to
accept. Cf. Rodriguez, 338 F.3d at 356 (concluding
that a private party could not have delegated
authority to arrest because the company had no
authority over county law enforcement policies that
it could have delegated).
226a
In addition, although Plaintiffs do not assert a
claim directly against Duke Health in Count 12,
Plaintiffs allege elsewhere in the Second Amended
Complaint that the “Chairman’s Directive” was the
moving force behind Levicy’s conduct or that Dzau,
as a policymaker for Duke and Duke Health, ratified
and condoned their participation in these
unconstitutional acts (Second Am. Compl. ¶ 996).
However, although the Court has concluded that
there are sufficient allegations to support at least a
plausible claim that Levicy herself jointly
participated with Nifong, Gottlieb, and Himan in the
constitutional violations alleged as to Counts 1, 2,
and 5, that does not transform her supervisors or her
employer into state actors. The allegations against
Duke are not sufficient to state a plausible claim
that Duke Health was acting as the Government.
Therefore, the Court concludes that Plaintiffs have
failed to allege a plausible claim that either Duke or
Duke Health was a “state actor” or was acting
“under color of state law” so as to impose § 1983
liability on a private university.
Therefore the Motions to Dismiss as to Count
12 will be granted as to Duke but will denied as to
the City, such that the City is properly included as a
Defendant in Counts 1, 2, and 5.50
To the extent that Plaintiffs in other claims have
attempted to assert this Monell claim against DSI, the Court
notes that there is no constitutional claim against DSI or its
employees asserted in Counts 1, 2, and 5. Instead, the § 1983
claims against DSI and its employees were based on the
allegations in Counts 4, 6, and 7, which the Court has
dismissed. Therefore, Plaintiffs have not stated a plausible
§ 1983 claim against DSI for the constitutional violations
alleged in Counts 1, 2, and 5.
50
227a
Count 13:
Supervisory Liability for Violations
of 42 U.S.C. § 1983, asserted against
Brodhead, Trask, Dawkins, Graves,
Dean, Humphries, Cooper, Garber,
Schwab, Fleming, Best, Steel,
Lange, Burness, Moneta, Dzau,
Haltom,
Wasiolek,
Bryan,
Drummond,
Baker,
Chalmers,
Hodge, Russ, Mihaich, Council,
Lamb, Ripberger, Evans, Soukup,
Duke, and the City51
In Count 13, Plaintiffs assert claims under 42
U.S.C. § 1983 for “supervisory liability.” As the basis
for this claim, Plaintiffs allege that the named
Defendants are liable on four bases. First, Plaintiffs
allege that the Duke and Durham Supervisors
named as Defendants in this Count are liable under
§ 1983 for failing to “control and supervise” the
investigation after Duke Police ceded authority to
Gottlieb and told their officers to report to him, and
after Durham Police and Duke Police allowed Nifong
to control the investigation and directed their
officers to report to him. Second, Plaintiffs allege
that the named Defendants are liable under § 1983
for failing to “control and supervise Gottlieb” and for
recklessly transferring the investigation to Gottlieb.
Third, Plaintiffs allege that the named Defendants
are liable under § 1983 because they failed to
educate and train Addison and because Durham
The claims are asserted against the individual
Defendants in their “individual and official capacities,”
although any official capacity claim against the City employees
would be viewed as a claim against the City itself, which is
addressed with respect to Count 12.
51
228a
Police Supervisors failed to take “prompt and
meaningful preventative or remedial action” against
Addison. Plaintiffs allege that the Duke and Durham
Supervisors and other Duke officials compounded
Addison’s abuses by making similar statements that
they knew or should have known were false. Fourth,
Plaintiffs allege that the Durham Police Supervisors
are liable under § 1983 because Communications
Officer Michael had previously engaged in a pattern
of publishing false statements and failing to preserve
communications evidence, and because the Durham
Police Supervisors knew or should have known of
alleged constitutional violations by Michael with
respect to Plaintiffs, but failed to take meaningful
action to correct this conduct.
Supervisory officials may be liable under
§ 1983 if “(1) . . . the supervisor had actual or
constructive knowledge that his subordinate was
engaged in conduct that posed ‘a pervasive and
unreasonable risk’ of constitutional injury to citizens
like the plaintiff; (2) . . . the supervisor’s response to
that knowledge was so inadequate as to show
‘deliberate indifference to or tacit authorization of
the alleged offensive practices[]’; and (3) . . . there
was an ‘affirmative causal link’ between the
supervisor’s
inaction
and
the
particular
constitutional injury suffered by the plaintiff.” Shaw
v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). As
discussed above, the Supreme Court in Ashcroft v.
Iqbal reiterated that “[b]ecause vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant,
through the official’s own individual actions, has
violated the Constitution.” 129 S. Ct. 1937, 1948
229a
(2009) (emphasis added). In Iqbal, the Supreme
Court affirmed that under § 1983, supervisors “may
not be held accountable for the misdeeds of their
agents” and noted that as such, “the term
‘supervisory liability’ is a misnomer.” Id. at 1949.
Thus, each government actor “is only liable for his or
her own misconduct” which requires the requisite
intent for the type of constitutional violation pled.
See id. (holding that where the underlying
constitutional violation required a showing of
“purpose” to discriminate, “a supervisor’s mere
knowledge of his subordinate’s discriminatory
purpose” is not sufficient to establish a
constitutional violation by the supervisor). However,
in applying this standard, circuit courts have
concluded that supervisory liability may still be
imposed based on “deliberate indifference” where the
underlying constitutional violation itself may be
established based on deliberate indifference. See
Starr v. Baca, No. 09-55233, 2011 WL 477094, at *4
(9th Cir. 2011); see also, e.g., Smith v. Ray, No. 091518, 2011 WL 317166, at *8 (4th Cir. Feb. 2, 2011)
(continuing to apply the Shaw v. Stroud “deliberate
indifference” standard).
In this case, Plaintiffs assert a claim for
“supervisory liability” against Durham officials
Baker, Chalmers, Hodge, Russ, Mihaich, Council,
Lamb, Ripberger, Evans, and Soukup.52 In
considering these contentions, the Court notes that
The claims against Duke Supervisors Brodhead,
Trask, Dawkins, Graves, Dean, Humphries, Cooper, Garber,
Schwab, Fleming, Best, Steel, Lange, Burness, Moneta, Dzau,
Haltom, Wasiolek, Bryan, and Drummond are considered
separately below.
52
230a
the potential constitutional violations at issue in this
case are the claims in Counts 1 and 2 for unlawful
search and seizure, and the claim in Count 5 for
false public statements without due process. With
respect to the claims against the Supervisors,
Plaintiffs allege that Baker, Chalmers, Hodge, Russ,
Council, Lamb, and Ripberger53 were final
policymaking officials for the Durham Police
Department, who were responsible for the policies
that led to the alleged constitutional violations in
Counts 1, 2, and 5, and that these Supervisors were
deliberately indifferent to the likelihood that the
policies would result in a deprivation of Plaintiffs’
constitutional rights.54 Plaintiffs further allege that
Baker, Chalmers, Hodge, Russ, Council, Lamb, and
Ripberger were the supervisors of Himan, Gottlieb,
and Addison, and that they knew of Gottlieb’s prior
unconstitutional conduct toward Duke Students and
the risk that Gottlieb would engage in future
constitutional
violations,
including
unlawful
53 Plaintiffs’ allegations as to Defendants Mihaich,
Evans, and Soukop are considered separately.
54 In this case, for the claims alleged in Counts 1 and 2,
Plaintiffs must allege that a false statement, essential to the
probable cause determination, was included by the affiant in
the warrant affidavit knowingly and intentionally, or with
reckless disregard for the truth. Thus, the requisite intent to
establish a constitutional violation and defeat qualified
immunity is actual intent or reckless disregard. As discussed
above, under Iqbal, each government actor “is only liable for his
or her own misconduct” which requires the requisite intent for
the type of constitutional violation pled. Therefore, “deliberate
indifference,” which requires a showing of actual intent or
reckless disregard, would be sufficient to establish the requisite
intent. See Starr v. Baca, No. 09-55233, 2011 WL 477094, at
*2-4 (9th Cir. 2011).
231a
searches and fabrications of evidence, but that they
nevertheless “acquiesced” in Gottlieb’s decision to
take over the investigation, and recklessly
transferred the supervision of the investigation to
Gottlieb, in deliberate indifference to “the likelihood
that their decision to do so would result in violations
of Plaintiffs’ constitutional rights.” (Second Am.
Compl. ¶ 1072). Plaintiffs contend that these
Supervisors thus caused the alleged constitutional
violations by failing to correct Gottlieb’s prior
misconduct and by allowing him to direct the
investigation, including obtaining the NTO and
search warrant, with deliberate indifference to the
risk that he would violate Plaintiffs’ constitutional
rights in that process. Plaintiffs also contend that
these Supervisors were directly involved in the
investigation and were aware of the conduct of
Nifong, Gottlieb, Himan, and Addison during the
investigation, but refused efforts to receive Plaintiffs’
proffered evidence of innocence and were
deliberately indifferent to the ongoing violations of
Plaintiffs’ constitutional rights by Nifong, Himan,
Gottlieb, and Addison. Finally, Plaintiffs contend
that these Supervisors subsequently “ratified the
abuse of the [NTO] Process and the Warrant Process
approving the use of fabricated Affidavits to obtain
those orders, and permitting the general public to
continue to believe that the false statements made in
the Affidavits were true for over a year.” (Second
Am. Compl. ¶ 1081).
Although Plaintiffs’ allegations are not direct
or concise with respect to these Supervisors, the
Court concludes that in light of the evolving law
regarding supervisory liability after Iqbal, Plaintiffs
232a
have sufficiently alleged conduct by these
Supervisors to at least raise a plausible claim at this
stage in the case.55 These Defendants raise the
defense of qualified immunity, but as discussed
above with respect to Counts 1 and 2, a reasonable
police officer would have known that it would violate
clearly established constitutional law to deliberately
or recklessly present false or misleading evidence to
obtain an order and effect a search or seizure
without probable cause. In addition, under the
Fourth Circuit’s decision in Shaw, it was clearly
established that an official violated the constitution
if, in deliberate indifference to the constitutional
rights of citizens, the official knew of his
subordinate’s constitutional violations and failed to
act. Here, Plaintiffs allege that these Supervisors
knew of Gottlieb’s previous constitutional violations
against Duke Students, including fabrication of
warrants and searches and seizures without
probable cause, and were deliberately indifferent to
the rights of citizens by condoning and ratifying that
behavior and then assigning him to an investigation
involving Plaintiffs and other Duke Students. In
addition, Plaintiffs allege that these Supervisors
knew of the alleged constitutional violations with
respect to the NTO and search warrant, and ratified
and approved that conduct, including the alleged
fabrication of the affidavit. Therefore, the Court will
allow the claims against Durham Supervisors Baker,
Chalmers, Hodge, Russ, Council, Lamb, and
Moreover, it is apparent that these Supervisors will
necessarily be involved in the discovery process in this case in
any event, given their direct involvement in the alleged events
and the ongoing claims against the City and other City
employees.
55
233a
Ripberger to go forward at this time, but at
summary judgment, it will be Plaintiffs’ burden to
“pinpoint[] the persons in the decisionmaking chain
whose deliberate indifference permitted the
constitutional abuses to continue unchecked,” and
the Court will scrutinize evidence regarding each
Defendant’s direct, individual involvement, and
evidence regarding their individual intent, in order
to determine whether any of them is potentially
liable under § 1983 for their own conduct with
respect to the alleged constitutional violations that
are proceeding in this case. See Shaw, 13 F.3d at
798.
However, as to Defendant Evans, Plaintiffs
allege that Evans was a Sergeant with the Durham
Police Department who became Himan’s supervisor
in October 2006, but there is no basis on which to
state a claim against Evans for liability for the
alleged constitutional violations in Counts 1, 2, and
5, which are alleged to have occurred in March and
April of 2006, months before Evans became a
supervisor. In addition, as to Defendant Mihaich,
Plaintiffs concede that Mihaich was not a direct
supervisor of anyone who engaged in alleged
constitutional violations. Plaintiffs nevertheless
contend that Mihaich should have maintained
responsibility for the investigation, but this is an
insufficient basis on which to state a claim for
supervisory liability against Mihaich. Finally,
Plaintiffs allege that Soukup was the Director of the
Durham Communications Center and allegedly
delegated his authority to Addison and Michael with
respect to records and recordings of the
investigation, but that is also an insufficient basis on
234a
which to allege liability for the constitutional
violations alleged in Counts 1, 2, and 5. Therefore,
the supervisory liability claims against Evans,
Mihaich, and Soukup will be dismissed.
To the extent that this claim is brought
against Duke employees and officials (Brodhead,
Trask, Dawkins, Graves, Dean, Humphries, Cooper,
Garber, Schwab, Fleming, Best, Steel, Lange,
Burness, Moneta, Dzau, Haltom, Wasiolek, Bryan,
and Drummond), Plaintiffs contend that the Duke
employees and officials are liable for failing to
“control and supervise” the investigation after ceding
authority to Gottlieb and Nifong, and for failing to
“control and supervise Gottlieb,” when they “knew or
should have known” of alleged past and present
constitutional violations. However, on this point, the
Court has already determined as a matter of state
law that Duke did not have any authority to control
or supervise or prevent any investigation or conduct
by Durham Police or Nifong. Moreover, the
allegation that these officials “knew or should have
known” of constitutional violations and failed to
intervene is insufficient to state a claim for
supervisory liability under Iqbal. To the extent that
Plaintiffs allege that the Duke employees and
officials
“compounded”
alleged
constitutional
violations by Addison, the Court finds that no Duke
employees or officials had supervisory authority over
Addison, and these allegations do not state a claim
for “supervisory liability.” In addition, as discussed
at length above, the named Duke officials were not
“state actors” and were not acting “under color of
state law.” Therefore, the Court concludes that
Plaintiffs have failed to state a claim against any of
235a
the Duke officials, and Count 13 will be dismissed as
to Brodhead, Trask, Dawkins, Graves, Dean,
Humphries, Cooper, Garber, Schwab, Fleming, Best,
Steel, Lange, Burness, Moneta, Dzau, Haltom,
Wasiolek, Bryan, Drummond, and Duke.
Finally, to the extent that this claim is
asserted against the City, there is no basis to hold
the City liable for “supervisory liability,” and instead
any claim against the City is governed by Monell
and is considered in Counts 12 and 14.
Based on these determinations, the claim for
supervisory liability alleged in Count 13 will be
dismissed as to Brodhead, Trask, Dawkins, Graves,
Dean, Humphries, Cooper, Garber, Schwab,
Fleming, Best, Steel, Lange, Burness, Moneta, Dzau,
Haltom, Wasiolek, Bryan, Drummond, Duke, Evans,
Mihaich, Soukup, and the City. However, this claim
will go forward at this stage as to Defendants Baker,
Chalmers, Hodge, Russ, Council, Lamb, and
Ripberger.
Count 14:
Failure to Train in Violation of 42
U.S.C. § 1983, asserted against the
City, Duke, and DSI
In Count 14, Plaintiffs assert a claim under 42
U.S.C. § 1983 for “failure to train.” As the basis for
this claim, Plaintiffs allege that “the City’s training
of Nifong, Gottlieb, Himan, and Clayton was
obviously deficient” with respect to obtaining
evidence, photo identification procedures, forensic
science, discovery rules, use of the media,
maintenance of case notes, role of a SANE,
236a
disproportionate enforcement of criminal laws, use of
legal process, use of NTO process, proper division of
responsibilities in investigations, and duty to act to
prevent constitutional violations. (Second Am.
Compl. ¶ 1142). Plaintiffs allege that this failure to
train led to the violation of Plaintiffs’ constitutional
rights and that the City was deliberately indifferent
to the need for additional training.
As discussed with respect to Count 12,
municipal liability has been recognized based on
inadequate training or supervision of employees if
the training or supervision was so inadequate as to
establish “deliberate indifference” to the rights of
citizens and if the deficiency caused the
constitutional violation alleged. See City of Canton v.
Harris, 489 U.S. 378, 390-92, 109 S. Ct. 1197, 1206,
103 L. Ed. 2d 412 (1989); see also Carter v. Morris,
164 F.3d 215, 218-19 (4th Cir. 1999). In this case,
the Court has already determined that Plaintiffs
have stated a potential claim against the City for the
underlying constitutional violations alleged in
Counts 1, 2, and 5. The allegations in Count 14 are
simply another basis for asserting the same claim.
Therefore, the Court will allow the claim against the
City in Count 14 to proceed, but only as a basis for
asserting claims against the City based on the
constitutional violations in Counts 1, 2, and 5.
The Court notes that although this claim is
also asserted against Duke and DSI, there are no
allegations as to Duke or DSI setting out the basis
for the claim. Moreover, the Court has already
concluded, as discussed in Count 12, that Duke is a
private entity and was not acting “under color of
237a
state law” under the facts alleged. In addition, there
is no basis for a claim against DSI since the
underlying constitutional violations asserted against
DSI in Counts 4, 6, and 7 have been dismissed.
Therefore, this claim will be dismissed as to
Defendants Duke and DSI, but will proceed against
the City as a basis for asserting claims against the
City based on the constitutional violations in Counts
1, 2, and 5.
Count 15:
Conspiracy in Violation of 42 U.S.C.
§ 1983, asserted against Nifong,
Wilson, DSI, Clark, Meehan, Duke,
Steel, Brodhead, Lange, Trask,
Burness, Moneta, Dzau, Haltom,
Dawkins,
Wasiolek,
Bryan,
Drummond, Duke Health, Private
Diagnostic, Manly, Arico, Levicy,
Duke
Police,
Graves,
Dean,
Humphries,
Cooper,
Garber,
Schwab, Fleming, Best, Smith,
Stotsenberg,
the
City,
Baker,
Chalmers, Hodge, Russ, Mihaich,
Council, Lamb, Ripberger, Evans,
Soukup, Michael, Addison, Gottlieb,
Himan, and Clayton56
In Count 15, Plaintiffs bring a claim under 42
U.S.C. § 1983 for “Conspiracy.” As the basis for this
claim, Plaintiffs allege that the named Defendants
This claim is brought against Nifong in his individual
capacity and in his “official capacity with respect to the
Durham Police and the City of Durham.” However, as discussed
in Count 12, Defendant Nifong does not have an official
capacity with respect to the Durham Police or the City of
Durham.
56
238a
“conspired and entered into express and/or implied
agreements, understandings, or meetings of the
minds among themselves and others to deprive
Plaintiffs of their constitutional rights by retaliating
against Plaintiffs for exercising their First and Fifth
Amendment rights, publicly excoriating their
character and that of their teammates, falsely
claiming [that] they and their teammates had
history of deplorable conduct, and by charging and
prosecuting the three innocent Duke lacrosse players
on charges of rape, sexual assault, and kidnapping,
which these Defendants knew were not supported by
probable cause.” (Second Am. Compl. ¶ 1149).
Plaintiffs allege that “these Defendants” engaged in
multiple “overt acts,” including the previouslyasserted constitutional violations. Plaintiffs allege
that this conduct “evinces a malicious and corrupt
intent to harm the Plaintiffs” and “shocks the
contemporary conscience.” (Second Am. Compl. ¶
1153).
“To establish a civil conspiracy under § 1983,”
Plaintiffs must allege that the Defendants “acted
jointly in concert and that some overt act was done
in furtherance of the conspiracy which resulted in
[Plaintiffs] deprivation of a constitutional right.”
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th
Cir. 1996). To establish such a claim, Plaintiffs must
ultimately prove that “each member of the alleged
conspiracy shared the same conspiratorial objective,”
that is, that Defendants “positively or tacitly came to
a mutual understanding to try to accomplish a
common and unlawful plan.” Id. In this case, based
on the potential constitutional violations actually
stated here, the allegation of an unlawful plan must
239a
have related to the unlawful seizure of Plaintiffs
without probable cause using false and misleading
evidence, and the release of false, defamatory
statements in connection with that unlawful seizure.
With respect to Defendants Nifong, Gottlieb,
Himan, Levicy, Wilson, Addison, and Hodge, the
Court has already discussed the substance of the
alleged violations by those Defendants as set out in
Counts 1, 2, and 5, including allegations of
conspiracy, and there is no basis to assert an
additional, separate claim against those particular
Defendants in Count 15. With respect to the
remaining Defendants, however, the claims asserted
here in Count 15 are “group” claims asserting
liability against 50 Defendants for their alleged
participation in a vast conspiracy, without specifying
which Defendants committed or conspired to commit
which alleged constitutional violations. In their
Response Briefs, Plaintiffs tie this alleged conspiracy
claim to the constitutional violations alleged in
Counts 6 and 7, which have been dismissed. In
addition, Plaintiffs identify the conspiracy as a
“conspiracy to convict.” However, as discussed above,
other than the substance of the claims asserted in
Counts 1, 2, and 5, Plaintiffs’ allegations do not state
a claim for constitutional violations. Plaintiffs
contend that they have sufficiently stated a claim
against all 50 Defendants for conspiring together.
However, the Court concludes that these general,
conclusory allegations are not a sufficient basis to
state a § 1983 claim against all 50 Defendants.
Therefore, the general “conspiracy” claim asserted in
Count 15 will be dismissed.
240a
Count 16:
Conspiracy in Violation of 42 U.S.C.
§ 1985, asserted against Nifong,
Gottlieb, Himan, Wilson, Addison,
Michael, Baker, Chalmers, Hodge,
Russ, Mihaich, Council, Lamb,
Ripberger, Evans, Soukup, Steel,
Brodhead, Lange, Trask, Burness,
Moneta, Dzau, Haltom, Dawkins,
Graves, Dean, Humphries, Cooper,
Garber, Schwab, Fleming, Best,
Duke,
Duke
Health,
Private
Diagnostic, Manly, Arico, Levicy,
Meehan, Clark, DSI, and the City57
In Count 16, Plaintiffs bring a claim under 42
U.S.C. § 1985 for “Conspiracy” asserting four
different bases for this count. First, pursuant to 42
U.S.C. § 1985(2), Plaintiffs allege that the named
Defendants entered into agreements for the purpose
of obstructing justice in the State of North Carolina,
with the intent to deny Plaintiffs the equal
protection of the law. As part of this contention,
Plaintiffs assert that one or more of the Defendants
engaged in overt acts that were motivated by
invidious racial animus or were intended to incite
racial animus or take advantage of invidious racial
animus in the community. (Second Am. Compl. ¶
1159). In addition, Plaintiffs assert that one or more
of the Defendants engaged in overt acts that were
motivated by or that were intended to take
This claim is brought against Nifong in his individual
capacity and in his “official capacity with respect to the
Durham Police and Duke Police.” However, as discussed in
Count 12, Defendant Nifong does not have an official capacity
with respect to the Durham Police or Duke Police.
57
241a
advantage of invidious animus based on “Plaintiffs’
state citizenship - real or perceived - as being
citizens of other states only temporarily residing in
Durham.” (Second Am. Compl. ¶ 1160). Second,
Plaintiffs allege that the named Defendants58
entered into agreements among themselves to elicit
false statements from Plaintiffs and other witnesses
by force, intimidation, and threats. (Second Am.
Compl. ¶ 1161). Third, Plaintiffs allege that the
named Defendants59 entered into agreements among
themselves for the purpose of depriving Plaintiffs of
the equal protection of the laws. Also as part of this
contention, Plaintiffs assert that one or more of the
Defendants engaged in overt acts that were
motivated by invidious racial animus or were
intended to incite racial animus or take advantage of
invidious racial animus in the community, and that
one or more Defendants engaged in overt acts that
were motivated by or that were intended to take
advantage of invidious animus based on “Plaintiffs’
state citizenship - real or perceived - as being
citizens of other states only temporarily residing in
Durham.” (Second Am. Compl. ¶ 1162-1165). Fourth,
Plaintiffs allege that Steel, Brodhead, Lange, Trask,
Burness, Moneta, Dzau, Haltom, Dawkins, Graves,
Dean, Humphries, Cooper, Garber, Schwab,
In this allegation, Plaintiffs do not include Michael,
Duke, Duke Health, Private Diagnostic, Manly, Arico, Levicy,
Meehan, Clark, or DSI. Plaintiffs do include a factual assertion
against Clayton, although he is not named as a Defendant in
Count 16 in the Second Amended Complaint.
58
In this allegation, Plaintiffs do not include Wilson,
Meehan, Clark, and DSI. Plaintiffs do include a factual
assertion against Clayton, although he is not named as a
Defendant in Count16 in the Second Amended Complaint.
59
242a
Fleming, Best, and Duke entered into an agreement
among themselves to hinder or prevent the Duke
Police and Durham Police from giving or securing to
Plaintiffs the equal protection of the laws. (Second
Am. Compl. ¶ 1166-1167).
Plaintiffs’ contentions are based on the second
clause of 42 U.S.C. § 1985(2), which prohibits
conspiracies to obstruct justice in state court
proceedings “with intent to deny any citizen the
equal protection of the laws,” and on a similar
provision in 42 U.S.C. § 1985(3), which prohibits
conspiracies to deprive, “either directly or indirectly,
any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws.” 42 U.S.C. § 1985(2) & (3); Kush v.
Rutledge, 460 U.S. 719, 724-27, 103 S. Ct. 1483,
1486-88, 75 L. Ed. 2d 413 (1983). With respect to
both of these claims, “‘[t]he language requiring
intent to deprive of equal protection, or equal
privileges and immunities, means that there must be
some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the
conspirators’ action.’” Kush, 460 U.S. at 726, 103 S.
Ct. at 1487 (quoting Griffin v. Breckenridge, 403
U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338
(1971)). The Supreme Court has interpreted these
provisions of § 1985 narrowly, and has held that
plaintiffs must establish as an element of the cause
of action that the conspirators were motivated by a
purpose to discriminate against a recognized class of
persons. Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 268-72, 113 S. Ct. 753, 758-60, 122 L.
Ed. 2d 34 (1993). This “discriminatory purpose” for
purposes of § 1985, “implies more than intent as
243a
volition or intent as awareness of consequences. It
implies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.” Id. at 271-72, 113
S. Ct. at 760 (citation omitted). This discriminatory
intent must be shared by all of the conspirators, and
“willful blindness” to the discriminatory intent of
others is insufficient to establish a claim under
§ 1985. See Simmons v. Poe, 47 F.3d 1370, 1378 (4th
Cir. 1995). Thus, to establish a claim under the
provisions of § 1985 at issue in the present case, the
Plaintiffs must allege that all of the conspirators
were motivated by a purpose to discriminate against
a recognized class of persons of which Plaintiffs were
members.
Further, with respect to the “recognized
classes of persons” protected by § 1985, the Supreme
Court has noted that § 1985(3) was adopted in 1871
as part of the Ku Klux Klan Act in order to “combat
the prevalent animus” against blacks and their
supporters. United Bhd. of Carpenters & Joiners of
America v. Scott, 463 U.S. 825, 836, 103 S Ct. 3352,
3360, 77 L. Ed. 2d 1049 (1983). Given this statutory
purpose, the Supreme Court has further noted that
“it is a close question whether § 1985(3) was
intended to reach any class-based animus” other
than animus against blacks and “those who
championed their cause.” Id.; see also Harrison v.
Kvat Food Mgmt., Inc., 766 F.2d 155, 157-61 (4th
Cir. 1985) (noting that § 1985(3) was “enacted to
fulfill a particular purpose and designed to meet
particular conditions,” in 1871 to afford “a remedy
for the vindication of the civil rights of those being
244a
threatened and injured, notably blacks and
advocates for their cause” and that “the original
objective of the 1871 Civil Rights Act and § 1985(3)
was the protection of blacks and their supporters in
the South” ). Although the Supreme Court has not
definitively identified all of the “recognized classes of
persons” for purposes of § 1985(3), the Court of
Appeals for the Fourth Circuit has noted that “the
class protected can extend no further than to those
classes of persons who are, so far as the enforcement
of their rights is concerned, ‘in unprotected
circumstances similar to those of the victims of Klan
violence.’” Buschi v. Kirven, 775 F.2d 1240, 1258
(4th Cir. 1985) (quoting United Bhd. of Carpenters,
463 U.S. at 851, 103 S. Ct. at 3368); see also
Harrison, 766 F.2d at 161 (noting the Supreme
Court’s “lack of enthusiasm for expanding the
coverage of § 1985(3) to any classes other than those
expressly provided by the Court”); Phillips v. Mabe,
367 F. Supp. 2d 861, 873 (M.D.N.C. 2005) (noting
that “[p]laintiffs have standing under § 1985 only if
they can show they are members of a class that the
government has determined ‘requires and warrants
special federal assistance in protecting their civil
rights’” (citation omitted)). Thus, the Supreme Court
and the Court of Appeals for the Fourth Circuit have
narrowly interpreted the “recognized classes of
persons” who may bring § 1985 claims, and this
Court is bound to follow that interpretation in the
present suit.
Applying these standards in the present case,
the Court finds that Plaintiffs have not alleged that
they were in a classification entitled to protection
under § 1985(2) or § 1985(3). Based on the case law
245a
set out above, it is clear that “Duke Students” or
“Duke Lacrosse Team Members” are not classes
entitled to protection under § 1985. Cf. McGee v.
Schoolcraft Cmty. Coll., 167 Fed. Appx. 429, 435-36
(6th Cir. 2006) (finding that a group of individuals
seeking an advanced degree is not a class entitled to
special protection under § 1985(3)); Lewin v. Cooke,
95 F. Supp. 2d 513, 525-26 (E.D. Va. 2000) (holding
that a class of students does not qualify as a class
entitled to § 1985(3) protection); Murphy v.
Villanova Univ., 520 F. Supp. 560, 561-62 (E.D. Pa.
1981) (same); Crain v. Martinez, No. 93-942-CIVORL-22, 1994 WL 391672, at *1 (M.D. Fla. July 12,
1994) (same); Naglak v. Berlin, No. 87-3427, 1988
WL 30920, at *4 (E.D. Pa. March 30, 1988) (same);
see also Upah v. Thornton Dev. Auth., 632 F. Supp.
1279, 1281 (D. Colo. 1986) (holding that a class
composed of out-of-state residents is not a class
within the protection of § 1985(3)); Korotki v.
Goughan, 597 F. Supp. 1365, 1374 (D. Md. 1984)
(same); Ford v. Green Giant Co., 560 F. Supp. 275,
277-78 (W.D. Wash. 1983) (same).
Plaintiffs contend that they have alleged race
discrimination as white plaintiffs. However, the
§ 1985 claims based on this contention fails for two
reasons. First, the Supreme Court and Fourth
Circuit have indicated an intent to limit the
protections of § 1985 to discrimination against “those
classes of persons who are, so far as the enforcement
of their rights is concerned, ‘in unprotected
circumstances similar to those of the victims of Klan
violence.’” Buschi, 775 F.2d at 1258 (quoting United
Bhd. of Carpenters, 463 U.S. at 851, 103 S. Ct. at
3368)); see also Cloaninger v. McDevitt, No.
246a
106cv135, 2006 WL 2570586 (W.D.N.C. Sept. 3,
2006) (“As recognized by the controlling law in the
Fourth Circuit, the only class of persons protected by
Section 1985(3) are African Americans.” (citing
Harrison, 766 F.2d at 161-62)); Stock v. Universal
Foods Corp., 817 F. Supp. 1300, 1310 (D. Md. 1993)
(dismissing § 1985(3) claim because plaintiff, as a
white male, was not a member of a class that has
suffered historically pervasive discrimination);
Blackmon v. Perez, 791 F. Supp. 1086, 1093 (E.D.
Va. 1992) (dismissing § 1985(3) claims by white
plaintiffs because “plaintiffs do not represent a class
of persons who [do] not enjoy the possibility of
[ ]effective state enforcement of their rights”
(internal quotations omitted)).60
Second, even if the Fourth Circuit decided to
extend § 1985 to additional classes of persons,
including ‘white plaintiffs’ as a class, Plaintiffs here
have not sufficiently alleged facts in support of such
a claim. When a plaintiff attempts to assert a
conspiracy claim pursuant to § 1985(2) and
60 The Court notes that the decision in Waller v.
Butkovich, 605 F. Supp. 1137 (M.D.N.C. 1985), cited by
Plaintiffs, did not directly address this question, and in any
event was based on reasoning that was subsequently
repudiated by the Fourth Circuit in Buschi, 775 F.2d 1240, and
Harrison, 766 F.2d 155. In addition, the Court further notes
that this Court’s previous decision in Phillips v. Mabe did not
address the question of whether a § 1985 claim could be based
on alleged discrimination against whites as a class; instead,
Phillips involved § 1985 claims brought by a white plaintiff who
alleged discrimination based on his efforts to protect the
interests of black students, and the Court concluded that the
plaintiff was not a member of a protected class and did not
have standing to assert § 1985 claims there. See Phillips, 367
F. Supp. 2d at 873-74.
247a
§ 1985(3), the Fourth Circuit has made clear that the
purported conspiracy must be alleged in more than
just a “conclusory manner,” and must include
allegations of “concrete supporting facts.” Simmons,
47 F.3d at 1377. “[C]ourts have thus required that
plaintiffs alleging unlawful intent in conspiracy
claims under § 1985(3) or § 1983 plead specific facts
in a nonconclusory fashion to survive a motion to
dismiss.” Gooden v. Howard County, 954 F.2d 960,
969-70 (4th Cir. 1992); see also Jenkins v. Trs. of
Sandhills Cmty. Coll., 259 F. Supp. 2d 432, 445
(M.D.N.C. 2003). In this case, the Court finds that
the facts alleged in Plaintiffs’ Second Amended
Complaint would state a claim only for
discrimination against them as “Duke Students.”
Thus, Plaintiffs do not allege any facts that would
support the contention that Defendants intended to
discriminate against whites as a class, or intended to
injure Plaintiffs or deprive them of their rights
because they were white. See Bray, 506 U.S. at 26872, 113 S. Ct. at 758-60 (holding that plaintiffs must
establish as an element of the cause of action that
the conspirators were motivated by a purpose to
discriminate against a recognized class of persons).
Plaintiffs contend that “one or more Defendants”
engaged in acts that were “motived by invidious
racial animus, intended to incite and then galvanize
invidious racial animus against Plaintiffs in the
Durham community and/or were intended to take
advantage of the invidious racial animus that these
Defendants had fomented in the Durham community
against Plaintiffs.” (Second Am. Compl. ¶ 1159,
1163). However, the allegations in the Second
Amended Complaint do not support the contention
that Defendants were motivated by a purpose to
248a
discriminate against whites. Cf. Jordan v. Alt. Res.
Corp., 458 F.3d 332, 345-46 (4th Cir. 2006). In
addition, an allegation that “one Defendant” acted
with racial animus is insufficient to allege a
conspiracy in which all of the conspirators were
motivated by a shared intent to discriminate on the
basis of race. Cf. Simmons, 47 F.3d at 1378; Martin
v. Boyce, No. 1:99CV01072, 2000 WL 1264148, at *7
(M.D.N.C. July 20, 2000) (noting that for claims
under § 1985(3), “all of the conspirators must share
the same forbidden animus” and “when only one
conspirator is motivated by a forbidden purpose,
there can be no meeting of the minds, no agreement,
to deprive another of the equal protection of the laws
based on his race”).
In addition, to the extent that Plaintiffs allege
that one or more Defendants engaged in overt acts
that were motivated by or that were intended to take
advantage of invidious animus based on Plaintiffs’
state citizenship “real or perceived” as being
“citizens of other states only temporarily residing in
Durham,” the Court concludes that Plaintiffs’ factual
allegations support the contention, at most, that
they were discriminated against as “Duke Students,”
regardless of where they were from, as discussed in
greater detail with respect to Count 10. Therefore,
the Court concludes that Plaintiffs have failed to
state a claim under § 1985(2) or § 1985(3) because
Plaintiffs are not members of a “recognized class of
persons” entitled to protection under § 1985 and
because even if they were members of a recognized
class of persons, they have failed to sufficiently
allege racial or other class-based invidiously
249a
discriminatory animus as the basis of the alleged
conspirators’ action.61
Finally, the Court notes that as part of Count
16, Plaintiffs have included an allegation that the
Defendants entered into agreements among
themselves to elicit false statements from Plaintiffs
and other witnesses by force, intimidation, and
threats. Plaintiffs in their Response Briefs indicate
that this claim is brought pursuant to the second
clause of 42 U.S.C. § 1985(2), which as discussed
above, prohibits conspiracies to obstruct justice in
state court proceedings “with intent to deny any
citizen the equal protection of the laws.” See 42
U.S.C. § 1985(2); Kush, 460 U.S. at 724-27, 103 S.
Ct. at 1486-88. However, Plaintiffs have failed to
allege racial or other class-based invidiously
discriminatory animus, and cannot state a claim
under the second clause of 42 U.S.C. § 1985(2), so
this claim is properly dismissed.62 Count 16 will
therefore be dismissed as to all Defendants.
61 61 The Court notes that to the extent Plaintiffs
contend that Defendants violated their constitutional rights,
the Court has already recognized the ability of Plaintiffs to
pursue those claims pursuant to 42 U.S.C. § 1983, without
having to alleging facts to establish membership in a protected
class or class-based discrimination by Defendants. However,
the sections of § 1985 at issue here are very limited in scope. As
such, the claims alleged in this case are simply not within the
limited scope of those particular provisions of § 1985, at least
as those sections have been interpreted by the Supreme Court
and the Fourth Circuit.
Plaintiffs may have been attempting to assert this
claim based on the first clause of 42 U.S.C. § 1985(2), which
prohibits two of more persons from conspiring to deter a
witness from testifying truthfully in federal court. This
62
250a
Count 17:
Failure to Intervene in Violation of
42 U.S.C. § 1986, asserted against
Nifong, Steel, Brodhead, Wilson,
Lange, Trask, Burness, Moneta,
Dzau,
Haltom,
Duke
Police,
Dawkins,
Graves,
Dean,
Humphries,
Cooper,
Garber,
Schwab, Fleming, Best, Smith,
Stotsenberg, Duke Health, Private
Diagnostic, Manly, Arico, Levicy,
Clark,
Meehan,
DSI,
Baker,
Chalmers, Hodge, Russ, Mihaich,
Council, Lamb, Ripberger, Evans,
Soukup, Michael, Addison, Gottlieb,
Himan, Clayton, the City, and Duke
In Count 17, Plaintiffs bring a claim under 42
U.S.C. 1986 for “Failure to Intervene.” As the basis
for this claim, Plaintiffs allege that various
Defendants had the power to prevent the wrongs
conspired to be committed by themselves and other
Defendants in violation of 42 U.S.C. § 1985, but
neglected or refused to exercise such power.63 Thus,
provision does not require that the conspirators act with the
“intent to deprive their victims of the equal protection of the
laws.” Kush, 460 U.S. at 724-25, 103 S. Ct. at 1487. However,
this provision relates only to conspiracies to use force,
intimidation, or threats to deter a party or a witness from
attending federal court or testifying truthfully in a matter
pending in federal court, which Plaintiffs have not attempted to
allege with respect to Count 16.
Plaintiffs specifically assert that Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, Haltom, Duke Police,
Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab,
Fleming, Best, Smith, Stotsenberg, Duke Health, Private
Diagnostic, Manly, Arico, Levicy, Baker, Chalmers, Hodge,
63
251a
Russ, Mihaich, Council, Lamb, Ripberger, Evans, Soukup,
Michael, Addison, Gottlieb, Himan, Wilson, and Clayton had
the power to prevent the wrongs conspired to be committed by
Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau,
Haltom, Duke Police, Dawkins, Graves, Dean, Humphries,
Cooper, Garber, Schwab, Fleming, Best, Duke Health, Private
Diagnostic, Manly, Arico, Levicy, Meehan, Clark, DSI, the City,
Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb,
Ripberger, Evans, Soukup, Michael, Addison, Gottlieb, Himan,
Wilson, and Nifong. (Second Am. Compl. ¶ 1173). Plaintiffs
further assert that Steel, Brodhead, Lange, Trask, Burness,
Moneta, Dzau, Haltom, Dawkins, Graves, Dean, Humphries,
Cooper, Garber, Schwab, Fleming, Best, Duke, Nifong, Wilson,
Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb,
Ripberger, Evans, Soukup, and the City had the power to
prevent the wrongs conspired to be committed by Steel,
Brodhead, Lange, Trask, Burness, Moneta, Dzau, Haltom,
Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab,
Fleming, Best, the City, Baker, Chalmers, Hodge, Russ,
Mihaich, Council, Lamb, Ripberger, Evans, Soukup, Addison,
Gottlieb, Himan, Wilson, Clayton, and Nifong (Second Am.
Compl. ¶ 1177). Plaintiffs also assert that Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, Haltom, Duke Police,
Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab,
Fleming, Best, Smith, Stotsenberg, Duke Health, Private
Diagnostic, Manly, Arico, Levicy, Clark, Meehan, DSI, Baker,
Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger,
Evans, Soukup, the City and Duke had the power to prevent
the wrongs conspired to be committed by Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, Haltom, Dawkins,
Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming,
Best, Duke Health, Private Diagnostic, Manly, Arico, Levicy,
Duke, the City, Baker, Chalmers, Hodge, Russ, Mihaich,
Council, Lamb, Ripberger, Evans, Soukup, Michael, Addison,
Gottlieb, Himan, Clayton, and Nifong. (Second Am. Compl. ¶
1181). The Court notes that these paragraphs are indicative of
Plaintiffs’ inconsistent use of overlapping Defendant-groups,
which in conjunction with the sheer number of Defendants who
are included in conclusory fashion, adds unnecessary technical
complexity without adding anything of substance, and all of
these paragraphs are essentially just generic assertions that
252a
Count 17 is brought pursuant to 42 U.S.C. § 1986,
for failure to prevent the violations of 42 U.S.C.
§ 1985 alleged in Count 16. However, “[a] cause of
action based upon § 1986 is dependent upon the
existence of a claim under § 1985.” Trerice v.
Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
Therefore, when the underlying § 1985 claims are
dismissed, the § 1986 claims should also be
dismissed. See id. In the present case, because all of
the § 1985 claims are being dismissed, the Court
concludes that the § 1986 claims asserted in Count
17 should also be dismissed as to all of the
Defendants.
the Defendants had the power to prevent themselves and the
other Defendants from committing the alleged violations.
253a
Count 18:
Common
Law
Obstruction
of
Justice and Conspiracy, asserted
against Nifong, Steel, Brodhead,
Burness, Gottlieb, Himan, Lamb,
Wilson, Meehan, Clark, DSI, Levicy,
Manly,
Arico,
Dzau,
Private
Diagnostic, Duke Health, and
Duke64
In Count 18, Plaintiffs bring claims for
common law obstruction of justice and conspiracy. As
the basis for this claim, Plaintiffs allege that
Gottlieb, Himan, Wilson, Nifong, Meehan, Clark,
and DSI obstructed justice by conspiring to
manufacture and by manufacturing false and
misleading reports of forensic testing, and that
Gottlieb, Himan, Wilson, Nifong, and Steel
obstructed justice by conspiring to manufacture and
manufacturing false and misleading investigative
reports, and that Gottlieb, Himan, Wilson, Nifong,
64 This claim and other state claims are brought against
Nifong in his individual capacity and in his “official capacity
with respect to Durham Police.” However, as discussed in
Count 12, Defendant Nifong does not have an official capacity
with respect to the Durham Police, and any official capacity
claim against Nifong would be a claim against the State, which
Plaintiffs have not asserted here. The claims in Count 18 are
asserted against the remaining Defendants “in their individual
and official capacities.” Under state law, “a suit against a
defendant in his individual capacity means that the plaintiff
seeks recovery from the defendant directly; a suit against a
defendant in his official capacity means that the plaintiff seeks
recovery from the entity of which the public servant defendant
is an agent.” Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880,
887 (1997). Therefore, although the City is not specifically
listed as a Defendant in Count 18, the claims asserted in Count
18 against Gottlieb and Himan in their “official capacity,” are
treated as claims against the City.
254a
Steel, Dzau, Manly, Arico, Levicy, Duke Health, and
Duke obstructed justice by conspiring to
manufacture
and
manufacturing
false
and
misleading forensic medical records and reports.
Plaintiffs further allege that Gottlieb, Himan,
Wilson, Nifong, Meehan, Clark, and DSI obstructed
justice by conspiring to deprive Plaintiffs of copies of
exonerating DNA test results, and that Gottlieb,
Himan, Wilson, and Nifong conspired to obstruct
justice and obstructed justice by intimidating and
attempting to intimidate Plaintiffs and other
witnesses. Plaintiffs also allege that Nifong,
Gottlieb, and Himan obstructed justice by
manipulating witness identification procedures and
by making false public statements. Plaintiffs further
allege that Steel, Brodhead, Dzau, and Burness
obstructed public justice by making plans to conceal
their participation in the conspiracies alleged in the
Second Amended Complaint, in order to avoid
potential civil liability to Plaintiffs or their
teammates.65 In addition, Plaintiffs allege that
Defendant Lamb obstructed justice. Although no
additional allegations are included against Lamb as
part of this Count, Plaintiffs in their briefing refer to
earlier allegations that Lamb intimidated witnesses
and destroyed recordings.
“Obstruction of justice” is a criminal offense
under North Carolina General Statutes § 14-221
through §14-227. It is also a common law tort in
North Carolina. Under North Carolina common law,
“‘[i]t is an offense to do any act which prevents,
Plaintiffs also include factual allegations as to
Graves, Dean, Best, Clayton, Lange, Moneta, and Wasiolek, but
Count 18 is not asserted against those Defendants.
65
255a
obstructs, impedes or hinders public or legal
justice.’” Jones v. City of Durham, 183 N.C. App. 57,
59, 643 S.E.2d 631, 633 (2007) (quoting Broughton v.
McClatchy Newspapers, Inc., 161 N.C. App. 20, 33,
588 S.E.2d 20, 30 (2003)); see also 67 C.J.S.
Obstructing Justice § 1 (noting that “obstructing
justice” means “impeding or obstructing those who
seek justice in a court or those who have duties or
powers of administering justice in courts”). This tort
would
include,
for
example,
claims
that
“[d]efendants attempted to impede the legal justice
system through [a] false affidavit,” Jackson v. Blue
Dolphin Commc’ns of N.C., L.L.C., 226 F. Supp. 2d
785, 794 (W.D.N.C. 2002), and claims that
defendants “conspired to impede [the] investigation
of this case by destroying . . . records and by
falsifying and fabricating records.” Henry v. Deen,
310 N.C. 75, 86, 310 S.E.2d 326, 333 (1984); see also
Reed v. Buckeye Fire Equip., 241 Fed. Appx. 917,
928 (4th Cir. 2007) (collecting cases); Henry, 310
N.C. at 86, 310 S.E.2d at 333 (recognizing a potential
claim for obstruction of justice where the plaintiff
alleged that the defendant had destroyed and
falsified medical records and thus impeded plaintiff’s
wrongful death claims in that civil suit). The North
Carolina Court of Appeals recently held that “any
action intentionally undertaken by the defendant for
the purpose of obstructing, impeding, or hindering
the plaintiff’s ability to seek and obtain a legal
remedy will suffice to support a claim for common
law obstruction of justice.” Blackburn v. Carbone,
703 S.E.2d 788, 796 (N.C. Ct. App. 2010) (noting that
falsification of evidence could support a finding of
liability for common law obstruction of justice).
256a
In the present case, Defendants generally
contend that a claim for obstruction of justice may
only be raised with respect to conduct in a civil
lawsuit, not with respect to conduct surrounding a
potential criminal investigation. However, the North
Carolina Supreme Court in In re Kivett recognized
that an “attempt to prevent the convening of the
grand jury would support a charge of common law
obstruction of justice.” In re Kivett, 309 N.C. 635,
670, 309 S.E.2d 442, 462 (1983); see also State v.
Wright, 696 S.E.2d 832, 835 (N.C. Ct. App. 2010)
(noting that “common law obstruction of justice
extends
beyond
interference
with
criminal
proceedings” (emphasis added)); Henry, 310 N.C. at
87, 310 S.E.2d at 334 (recognizing potential
obstruction of justice claim even if alleged conduct
occurred while no legal proceedings were pending or
actually threatened). Therefore, the Court will not
interpret this claim more narrowly than the state
courts have done, and will not rule out the possibility
that a claim could exist for common law obstruction
of justice for creation of false evidence or destruction
of evidence for the purpose of impeding the justice
system, even if the conduct occurred as part of a
criminal investigation. Moreover, even if the state
courts would ultimately require that the alleged
obstruction of justice occur in connection with a civil
proceeding, Plaintiffs assert that the obstruction of
justice alleged in this case included destruction and
fabrication of evidence to prevent its use in future
lawsuits or to “cover-up” misconduct and hinder
Plaintiffs’ ability to bring a future claim. Defendants
contend that Plaintiffs have not alleged facts to state
a claim that Defendants’ alleged conduct actually
obstructed, impeded, or hindered any aspect of the
257a
claim, but the Court concludes that Plaintiffs have
alleged significant misconduct in the creation of false
and misleading evidence and destruction or
alteration of potential evidence, and further analysis
of these issues would require consideration of factual
issues more appropriately considered at summary
judgment to determine if sufficient evidence is
presented in support of the claim. Therefore, the
Court concludes that Plaintiffs have stated a state
tort claim for obstruction of justice at this stage.
However, general allegations of a “conspiracy”
are not sufficient to impose liability on those not
themselves involved in alleged acts of obstruction of
justice. Instead, the factual allegations must support
a claim that each Defendant against whom the claim
is asserted was involved in the obstruction of justice
and shared the intent to obstruct justice. In the
present case, Plaintiffs have alleged direct
obstruction of justice by Nifong, Gottlieb, Himan,
Wilson, and Lamb, including in the falsification of
police reports, forensic medical reports, and DNA
reports, and the threatening of witnesses and
destruction of evidence. Plaintiffs have also alleged
direct obstruction of justice by Levicy to the extent
that Plaintiffs allege that Levicy intentionally
altered medical records and reports to obstruct
justice. Similarly, the Court notes that Plaintiffs
have also alleged claims against Meehan and Clark66
With respect to the state law claims against Clark,
Meehan, and DSI, the Court notes that under state law, reports
made by an expert witness in preparation for being called as an
expert witness in a judicial proceeding are subject to absolute
privilege under state law. See Sharp v. Miller, 121 N.C. App.
616, 617, 468 S.E.2d 799, 801 (1996); Williams v. Congdon, 43
N.C. App. 53, 55, 257 S.E.2d 677, 678 (1979). However,
66
258a
for obstructing justice by conspiring to manufacture
and by manufacturing false and misleading reports
of forensic testing. In addition, Plaintiffs have
alleged that Steel and Dzau participated in the
creation of false reports, and that Steel, Brodhead,
Dzau, and Burness engaged in obstruction of justice
by attempting to conceal their participation in the
alleged conspiracies to avoid liability in future
lawsuits. In support of this allegation, Plaintiffs
point to an e-mail among Duke officials regarding
the need to meet to “get their stories straight,” with
additional instructions to destroy the e-mail
immediately. (Second Am. Compl. ¶1198). While not
evidence of obstruction in and of itself, these
allegations at least raise a plausible claim that
Defendants acted with intent to obstruct justice,
including intent to obstruct Plaintiffs’ ability to
obtain a legal remedy. It will ultimately be Plaintiffs’
burden to establish actual obstruction of justice by
these Defendants, but the Court will allow this claim
to go forward at this time.
However, the Court further concludes that the
allegations against Arico and Manly are conclusory
allegations asserting that they participated in a
Plaintiffs contend that their claims here are based on nontestimonial investigative work by Meehan and Clark that
included creation of false and misleading evidence during the
investigation, not the creation of an expert report or expert
testimony. However, the Court will consider this issue at
summary judgment if the evidence establishes that the
challenged conduct by Clark or Meehan was as an expert
witness in the due course of a judicial proceeding. Similarly,
the contentions by Clark, Meehan, and DSI that the report was
not fabricated or false are more appropriately considered at
summary judgment.
259a
conspiracy with multiple other Defendants, without
specific factual allegations as to what conduct each
of them engaged in as the basis for this claim.
(Second Am. Compl. ¶ 913, 1215). The Court
concludes that these allegations are insufficient to
state a plausible claim that Arico and Manly
participated in the alleged obstruction of justice, and
the claims against Arico and Manly will therefore be
dismissed.67
Therefore, the claim for Obstruction of Justice
will go forward as to Defendants Levicy, Nifong,
Gottlieb, Himan, Wilson, Lamb, Clark, Meehan,
Steel, Brodhead, Dzau, and Burness, but will be
dismissed as to the remaining designated individual
Defendants. In addition, to the extent that these
individuals, against whom the claims are going
forward, are alleged to have been acting in the
course and scope of their employment, the principle
of respondeat superior would apply to this state tort
claim. In this regard, with respect to state torts,
“liability of a principal for the torts of his agent may
arise in three situations: (1) when the agent’s act is
expressly authorized by the principal; (2) when the
agent’s act is committed within the scope of his
employment and in furtherance of the principal’s
business; or (3) when the agent’s act is ratified by
the principal.” Hogan v. Forsyth Country Club Co.,
79 N.C. App. 483, 491, 340 S.E.2d 116, 121 (1986).
Plaintiffs have alleged respondeat superior liability
for the employers of the individuals against whom
It appears that Private Diagnostic was included as
Manly’s employer, but the allegations against Manly have been
dismissed, so the claims against Private Diagnostic will also be
dismissed.
67
260a
this claim is going forward, and therefore this claim
will go forward against Duke as the employer of
Steel, Brodhead, Dzau and Burness, against Duke
and Duke Health as the employer of Levicy, against
DSI as the employer of Clark and Meehan, and
against the City as the employer of Gottlieb, Himan,
and Lamb.68
As a result, the Motions to Dismiss Count 18
will be granted in part and denied in part.
Specifically, the claims alleged in Count 18 will go
forward as to Defendants Levicy, Nifong,69 Gottlieb,
Himan, Wilson, Lamb, Clark, Meehan, Steel,
Brodhead, Dzau, Burness, Duke, Duke Health, DSI,
and the City, as set forth herein. However, the
claims alleged in Count 18 will be dismissed as to
Defendants Arico, Manly, and Private Diagnostic.
68 As noted previously, although the City is not
specifically listed as a Defendant in Count 18, the claims
asserted in Count 18 are asserted against Gottlieb, Himan and
Lamb in their “official capacity,” and the “official capacity”
claims have been treated by the parties as claims against the
City. However, as discussed above, the Court does not accept
the legal contention that Nifong or Wilson had an “official
capacity” with respect to the City. Based on the Court’s
determinations above, no respondeat superior claim will go
forward against the City for the actions of Nifong or Wilson.
The Court notes that Defendant Nifong has not filed
a Motion to Dismiss, so the conclusions here as to Count 18 are
without prejudice to any further determination as to Defendant
Nifong after his current status as a Defendant is clarified by
Plaintiffs. See supra note 1.
69
261a
Count 19:
Common Law Abuse of Process and
Conspiracy,
asserted
against
Nifong, Addison, Gottlieb, Himan,
Clayton, Wilson, Steel, Brodhead,
Lange, Trask, Burness, Moneta,
Dzau,
Haltom,
Duke
Health,
Private Diagnostic, Manly, Arico,
Levicy, Duke, and the City
In Count 19, Plaintiffs assert a claim for
common law abuse of process and conspiracy. As the
basis for this claim, Plaintiffs allege that Nifong,
Gottlieb, Himan, and Wilson manufactured false
evidence for the NTO affidavit, that Nifong, Gottlieb,
and Himan utilized the NTO process “for purposes of
launching the case into the public spotlight,” that
Nifong, Hodge, and Addison made false and
misleading statements, that Gottlieb, Nifong, Levicy,
Arico, Manly, Private Diagnostic, Duke Health, and
Duke agreed to produce fabricated medical records
and affirmed Levicy’s false statements, and that
Dzau failed to correct these fabrications. (Second
Am. Compl. ¶ 1204-1208).
Under North Carolina law, “[a]buse of legal
process consists in the malicious misuse or
misapplication of that process to accomplish some
purpose not warranted or commanded by the writ. . .
. The distinctive nature of an action for abuse of
process is the improper use of process after it has
been issued, and not for maliciously causing it to
issue.” Ellis v. Wellons, 224 N.C. 269, 271, 29 S.E.2d
884, 885 (1944) (internal quotation omitted); Melton
v. Rickman, 225 N.C. 700, 703, 36 S.E.2d 276, 278
(1945) (“One who uses legal process to compel a
262a
person to do some collateral act not within the scope
of the process or for the purpose of oppression or
annoyance is liable in damages in a common law
action for abuse of process.”). “There are two
essential elements for an action for abuse of process,
(1) the existence of an ulterior motive, and (2) an act
in the use of the process not proper in the regular
prosecution of the proceeding.” Ellis, 224 N.C. at
271, 29 S.E.2d at 885. “The ulterior motive
requirement is satisfied when the plaintiff alleges
that the prior action was initiated by defendant or
used by him to achieve a collateral purpose not
within the normal scope of the process used. The act
requirement is satisfied when the plaintiff alleges
that once the prior proceeding was initiated, the
defendant committed some wilful act whereby he
sought to use the existence of the proceeding to gain
advantage of the plaintiff in respect to some
collateral matter.” Stanback v. Stanback, 297 N.C.
181, 201, 254 S.E.2d 611, 624 (1979). Under North
Carolina law, the second element requires Plaintiffs
to establish “malicious misuse or misapplication of
that process after issuance to accomplish some
purpose not warranted or commanded by the writ.”
Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597,
602, 646 S.E.2d 826, 831 (2007) (emphasis in
original) (quoting Stanback, 297 N.C. at 200, 254
S.E.2d at 624); see also Barnette v. Woody, 242 N.C.
424, 431, 88 S.E.2d 223, 227 (1955) (“The distinction
between an action for malicious prosecution and one
for abuse of process is that malicious prosecution is
based upon malice in causing the process to issue,
while abuse of process lies for its improper use after
it has been issued.”). Thus,”[e]vil purpose alone is
not sufficient” and “[r]egular and legitimate use of
263a
process, though with a bad intention, is not a
malicious abuse of process.” Melton, 225 N.C. at 704,
36 S.E.2d at 278 (internal quotation omitted)
(concluding that the alleged conduct of the defendant
was “not commendable” but that “his conduct prior
to the issuance of the warrant does not give rise to a
cause of action” because “[t]here can be no abuse of a
writ before its issuance”); see also Heck v.
Humphrey, 512 U.S. 477, 486 n.5, 114 S. Ct. 2364,
2372 n.5, 129 L. Ed. 2d 383 (1994) (noting that “[t]he
gravamen of that tort [abuse of process] is not the
wrongfulness of the prosecution, but some
extortionate perversion of lawfully initiated process
to illegitimate ends” and “[c]ognizable injury for
abuse of process is limited to the harm caused by the
misuse of process”).
In the present case, Plaintiffs have not alleged
any facts to state a claim for the malicious misuse or
misapplication of the NTO after its issuance. To the
extent that Plaintiffs allege misconduct in
connection with the NTO, the Court has recognized
potential claims in Counts 1, 2, 5, and 18, to the
extent that the alleged misconduct meets the
elements for those claims. However, the Court
concludes that there is no allegation of improper use
of process sufficient to state a claim for abuse of
process under North Carolina law. Therefore, the
Motions to Dismiss as to Count 19 will be granted,
and the claim asserted in Count 19 will be
dismissed.
264a
Count 20:
Intentional Infliction of Emotional
Distress and Conspiracy, asserted
against Gottlieb, Himan, Lamb,
Wilson, Meehan, Clark, Addison,
Hodge, Steel, Brodhead, Burness,
Levicy, Manly, Arico, Dzau, Nifong,
Duke Health, Private Diagnostic,
Duke, and DSI
In Count 20, Plaintiffs assert a common law
claim for intentional infliction of emotional distress.
As the basis for this claim, Plaintiffs allege that
Addison, Hodge, Steel, Brodhead, Burness, Levicy,
and Arico made false and inflammatory statements,
that Nifong, Clark, Gottlieb, Himan, Meehan,
Wilson, DSI, Levicy, Manly, Arico, Dzau, and Duke
Health manufactured inculpatory forensic evidence
and concealed exculpatory forensic evidence, and
that Nifong, Gottlieb, Himan, and Wilson
intimidated
witnesses
and
manipulated
identification procedures, all knowing that their
conduct would “stigmatize the Plaintiffs as violent
criminals motivated by ‘deep racial animus.’”
(Second Am. Compl. ¶ 1214-1218). Plaintiffs allege
that this conduct was extreme and outrageous and
was intended to cause Plaintiffs to suffer severe
emotional distress, and that as a result, “Plaintiffs
have suffered and continue to suffer diagnosable
emotional and mental conditions causing Plaintiffs
disabling emotional, mental, and/or physical harm.”
(Second Am. Compl. ¶ 1222).
Under North Carolina law, “liability arises
under the tort of intentional infliction of emotional
distress when a defendant’s conduct exceeds all
265a
bounds of decency tolerated by society and the
conduct causes mental distress of a very serious
kind.” West v. King’s Dep’t Store, Inc., 321 N.C. 698,
704, 365 S.E.2d 621, 625 (1988). “The essential
elements of an action for intentional infliction of
emotional distress are ‘1) extreme and outrageous
conduct by the defendant 2) which is intended to and
does in fact cause 3) severe emotional distress.’”
Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27
(1992) (quoting Dickens v. Puryear, 302 N.C. 437,
452, 276 S.E.2d 325, 335 (1981)). With respect to the
first element, conduct is “extreme and outrageous”
when it is “so outrageous in character, and so
extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”
Hogan v. Forsyth Country Club Co., 79 N.C. App.
483, 493, 340 S.E.2d 116, 123 (1986). With respect to
the second element, “[a] defendant is liable for
this tort when he ‘desires to inflict severe emotional
distress . . . [or] knows that such distress is
certain, or substantially certain, to result from his
conduct . . . [or] where he acts recklessly . . . in
deliberate disregard of a high degree of probability
that the emotional distress will follow’ and the
mental distress does in fact result.” Dickens v.
Puryear, 302 N.C. 437, 449, 276 S.E.2d 325, 333
(1981) (quoting Restatement (Second) of Torts § 46
cmt. i (1965)). With respect to the third element, “the
term ‘severe emotional distress’ means any
emotional or mental disorder, such as, for example,
neurosis, psychosis, chronic depression, phobia, or
any other type of severe and disabling emotional or
mental condition which may be generally recognized
and diagnosed by professionals trained to do so.”
266a
Waddle, 331 N.C. at 83, 414 S.E.2d at 27 (quoting
Johnson v. Ruark Obstetrics & Gynecology Assocs.,
P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh’g
denied, 327 N.C. 644, 399 S.E.2d 133 (1990)).
“Humiliation and worry are not enough.” Jolly v.
Acad. Collection Serv., 400 F. Supp. 2d 851, 866
(M.D.N.C. 2005). The North Carolina Supreme Court
has noted that “[e]motional distress passes under
various names, such as mental suffering, mental
anguish, mental or nervous shock, or the like. It
includes all highly unpleasant mental reactions,
such as fright horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment,
worry, and nausea,” but “[i]t is only where it is
extreme that the liability arises.” Waddle, 331 N.C.
73, 84, 414 S.E.2d 22, 27 (1992) (emphasis in
original); see also Pacheco v. Rogers & Breece, Inc.,
157 N.C. App. 445, 451, 579 S.E.2d 505, 509 (2003)
(applying this standard and noting that “[e]ven
assuming, arguendo, that some issues are ‘too
obvious to dispute,’ the legal presence of severe
emotional distress is not among these,” and rejecting
the contention that outrageous conduct can
substitute for severe emotional distress).
In the present case, with respect to the
requirement that Plaintiffs have suffered “severe
emotional distress,” the Court notes that in the
Second Amended Complaint, Plaintiffs do not
include any specific allegations of emotional or
mental disorders or severe and disabling emotional
or mental conditions suffered by any of the Plaintiffs
individually.
Indeed,
the
Second
Amended
Complaint
does
not
include
any
specific
identification of any particular Plaintiff’s mental or
267a
emotional condition or the nature of his emotional
distress. With respect to this issue, this Court has
previously dismissed claims for intentional infliction
of emotional distress (“IIED”) where the complaint
included only a conclusory statement of damages,
without any “factual allegations regarding the type,
manner, or degree of severe emotional distress [the
plaintiff] experienced.” Swaim v. Westchester Acad.,
Inc., 170 F. Supp. 2d 580, 585 (M.D.N.C. 2001); see
also Vogler v. Countrywide Home Loans, Inc., No.
1:10CV370, 2010 WL 3394034, at *9 (M.D.N.C. Aug.
26, 2010) (dismissing claim as insufficient where
“[p]laintiffs assert that they suffered severe
emotional distress, but do not allege any facts in
support of this assertion”); Baucom v. Cabarrus Eye
Ctr., P.A., No. 1:06CV209, 2007 WL 1074663, at *5
(M.D.N.C. Apr. 4, 2007) (noting that “[a]lthough the
amended complaint makes the conclusory statement
that Defendant’s actions caused ‘great emotional
distress,’ Plaintiff does not allege any facts or
conditions from which she suffered to support this
motion”); cf. Holleman v. Aiken, 193 N.C. App. 484,
501, 668 S.E.2d 579, 590 (2008) (concluding that the
plaintiff had failed to allege a claim for IIED where
the “plaintiff has failed to make any specific
allegations as [to] the nature of her severe emotional
distress”); Soderlund v. Kuch, 143 N.C. App. 361,
371, 546 S.E.2d 632, 639 (2001) (“The crux of
establishing ‘severe emotional distress’ is that the
emotional or mental disorder may generally be
diagnosed by professionals trained to do so,” even if
an actual diagnosis has not been made); Fox-Kirk v.
Hannon, 142 N.C. App. 267, 281, 542 S.E.2d 346,
356 (2001) (holding that a claim for infliction of
emotional distress was “not justiciable” where, at the
268a
time of the filing of the complaint, the plaintiff “had
not sought any medical treatment or received any
diagnosis for any condition that could support a
claim for severe emotional distress”).
In the present case, Plaintiffs contend that
they “suffered and continue to suffer diagnosable
emotional and mental conditions causing Plaintiffs
disabling emotional, mental and/or physical harm,”
but a “label and conclusion” or “naked assertion” will
not suffice under the pleading standards set out in
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed.
2d 868 (2009). Plaintiffs have failed to include any
factual allegations as to each Plaintiff’s emotional or
mental disorders, condition, or diagnosis, in order to
state a claim that each of them suffered from severe
emotional distress. Plaintiffs also failed to
sufficiently allege a link between any emotional or
mental disorder or condition and the specific
misconduct alleged in this claim.70 Therefore,
Defendants’ Motions to Dismiss as to Count 20 will
be granted, and Plaintiffs’ claims for intentional
infliction of emotional distress will be dismissed on
this basis.
The Court notes, however, that emotional distress
damages are nevertheless recoverable under Counts 1, 2, 5, and
18, which are going forward, without any additional factual
allegations regarding the nature, diagnosis, or severity of
Plaintiffs’ emotional distress.
70
269a
Count 21:
Breach
of
Contract,
asserted
against Steel, Brodhead, Lange,
Moneta, Bryan, and Duke
In Count 21, Plaintiffs assert a claim under
state law for breach of contract. As the basis for this
claim, Plaintiffs allege that Duke and the Plaintiffs
entered into a contractual relationship, and that
Duke breached that contract by failing to provide
them with certain substantive and procedural
safeguards provided in the Student Bulletin and
Student Code of Conduct. Specifically, Plaintiffs
allege that they were suspended and that the
suspensions were imposed without following the
procedures provided in the Bulletin and Code of
Conduct for disciplinary proceedings. Plaintiffs also
allege that Duke breached the contract by condoning
and ratifying harassment of Plaintiffs by faculty,
administrators, and staff.71 The Court has
considered these contentions, but the Court notes
71 As part of this claim, Plaintiffs also allege that Duke
breached the contract by collecting Plaintiffs’ “Duke Card”
information and failing to provide notice to Plaintiffs after
disclosing that information. In Response, Defendants have
submitted as an exhibit the “Duke Card Terms and
Conditions.” Plaintiffs object to consideration of that document
and contend that they do not claim that disclosure of their
financial information breached this agreement. Instead,
Plaintiffs contend that their claim for disclosure of their “Duke
Card” information is based on the contention that disclosure of
the information violated state and federal privacy laws, as
discussed with respect to Count 22. Therefore, the Court
accepts Plaintiffs’ statement that their claim for disclosure of
the Duke Card information is not based on breach of any
agreement or contract, and the Court has not considered the
Duke Card Terms and Conditions and has not considered this
issue as part of this breach of contract claim.
270a
that although this breach of contract claim was
asserted against individual Defendants Steel,
Brodhead, Lange, Moneta, and Bryan, Plaintiffs do
not allege that they had a contractual agreement
with any of these individuals, and therefore this
breach of contract claim will be dismissed as to
individual Defendants Steel, Brodhead, Lange,
Moneta, and Bryan. With respect to the breach of
contract claim against Duke, the Court notes that
there are two types of breach of contract claims here:
a claim for failure to follow promised procedures in
student
disciplinary
proceedings
imposing
suspensions, and a claim for failure to enforce the
anti-harassment policy.
Under North Carolina law, “[t]he elements of
a claim for breach of contract are (1) existence of a
valid contract and (2) breach of the terms of that
contract.” Parker v. Glosson, 182 N.C. App. 229, 232,
641 S.E.2d 735, 737 (2007) (internal quotations
omitted). “No contract is formed without an
agreement to which at least two parties manifest an
intent to be bound.” Id.; see also Elliott v. Duke
Univ., Inc., 66 N.C. App. 590, 595, 311 S.E.2d 632,
636 (1984) (noting that a contract does not exist if
“one party simply believes that a contract exists, but
there is no meeting of the minds.”); Horton v.
Humble Oil & Ref. Co., 255 N.C. 675, 679, 122
S.E.2d 716, 719 (1961) (noting that a contract must
be “definite and certain or capable of being made so”
such that the parties “assent to the same thing, in
the same sense”). Thus, a contract exists only if
there is mutual intent to contract and an agreement
on sufficiently definite terms to be enforceable. In
the educational context, the North Carolina Court of
271a
Appeals has recognized that a student can, in some
circumstances, bring a claim against a college or
university for breach of contract. See Ryan v. Univ.
of N.C. Hosps., 128 N.C. App. 300, 301, 494 S.E.2d
789, 790 (1998) (citing Ross v. Creighton Univ., 957
F.2d 410, 416 (7th Cir. 1992) (“[T]he basic legal
relation between a student and a private university
or college is contractual in nature.” (internal
quotations omitted))). However, the plaintiff must
“point to an identifiable contractual promise that the
[defendant] failed to honor” and the claim must not
involve “inquiry into the nuances of educational
processes and theories.” Id. at 302, 494 S.E.2d at 791
(internal quotations omitted); Ross v. Creighton
Univ., 957 F.2d 410, 417 (7th Cir. 1992) (noting a
potential claim if, for example, “the defendant took
tuition money and then provided no education, or
alternately, promised a set number of hours of
instruction and then failed to deliver”). Thus, “not all
aspects of the student/university relationship are
subject to a contract remedy,” and it is a plaintiff’s
obligation to point to a mutual agreement with
sufficiently definite terms or obligations. See
Hendricks v. Clemson Univ., 578 S.E.2d 711, 716
(S.C. 2003).
Applying these rules in the academic context,
courts in this district have repeatedly concluded that
a university’s academic bulletins and policies cannot
be the basis of a breach of contract claim unless the
bulletin or policy provision is a specific, enforceable
promise that is incorporated into the terms of a
contract between the university and the student. See
Love v. Duke Univ., 776 F. Supp. 1070, 1075
(M.D.N.C. 1991) (finding that the academic bulletin
272a
was not a binding contract between a student and
the university), aff’d, 959 F.2d 231; Giuliani v. Duke
Univ., No. 1:08CV502, 2010 WL 1292321, *7-8
(M.D.N.C. Mar. 30, 2010) (dismissing breach of
contract claim where the student did not allege the
existence of a contract that specifically incorporated
the university’s handbooks and policy manuals into a
contract); Mercer v. Duke Univ., No. 1:97CV959
(M.D.N.C. Sept 28, 2000) (concluding that
nondiscrimination policy in the student handbook
did not constitute a contract between a studentathlete and the university); see also Tibbetts v. Yale
Corp., 47 Fed. Appx. 648, 656 (4th Cir. 2002)
(concluding that provisions of the Yale Student
Handbook were “not a contract, but merely a
university policy promoting free expression”);
Vurimindi v. Fuqua Sch. of Bus., No. 10-234, 2010
WL 3419568, at *6 (E.D. Pa. Aug. 25, 2010) (finding
that student had no cognizable breach of contract
claim under North Carolina law against a university
for failure to prevent harassment by classmates,
because “school publications are not generally a
valid source of contract” and “[a]ttending a college or
university does not warrant a student to file a
breach-of-contract suit whenever he or she feels that
the experience has not lived up to broad expectations
that he or she may have developed after reading
materials
promulgated
by
the
school’s
administrators, admissions office, or public relations
department”); Gally v. Columbia Univ., 22 F. Supp.
2d 199, 208 (S.D.N.Y. 1998) (holding that the fact
that a professor “may have been harsh or even
belittling to plaintiff does not create a valid cause of
action” for breach of a non-discrimination policy in
the Code of Conduct, since such claims would “open
273a
the floodgates to a slew of claims by students” and
are “better left to the sound handling of school
administrators”); cf. Ryan, 128 N.C. App. at 302, 494
S.E.2d at 791 (allowing breach of contract claim to
proceed based on identifiable contractual provision
specifically incorporated into an agreement
regarding employment and medical residency).
In the present case, considering first
Plaintiffs’ claims for breach of contract by condoning
and ratifying harassment of Plaintiffs by faculty,
administrators, and staff, there are no factual
allegations to support the contention that any
general policy against harassment created any
specific, enforceable contractual obligations upon
Duke. A general policy against harassment does not
provide any indication of any mutual agreement
between Duke and the students, and Plaintiffs have
not alleged any facts that would indicate any intent
by Duke to be bound to any particular obligation or
course of conduct based on a general policy against
harassment.
However, with respect to Plaintiffs’ breach of
contract claim for failing to follow promised
disciplinary procedures, Plaintiffs contend that the
Code of Conduct included specific, potentially
enforceable provisions outlining certain procedures
to be followed before a student would be suspended
for violation of the Code of Conduct. For example, as
to Plaintiff McFadyen, Plaintiffs contend that Duke
imposed an interim suspension under the Code of
Conduct, but that McFadyen did not receive notice of
the provision he was charged with violating, that he
did not receive a hearing within 3 days or an
274a
informal review by a 3-person committee as provided
in the Bulletin, and that he was not provided with
the procedural safeguards set out in the Bulletin.
Although a breach of contract claim would not allow
for review of the substance of the disciplinary
proceedings, since that is a matter left to educational
discretion, a breach of contract claim could
potentially reach the limited inquiry of whether
Duke failed to follow promised procedures for
imposing discipline (particularly suspension) under
the Code of Conduct. See Havlik v. Johnson & Wales
Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (noting that
a student’s relationship to his university is based in
contract, and “if the university explicitly promises an
appeal process in disciplinary matters, that process
must be carried out in line with the student’s
reasonable expectations”). Therefore, the Court will
allow this aspect of Plaintiffs’ breach of contract
claim to proceed, but only against Duke and only on
this limited basis with regard to the failure to follow
promised procedures in the disciplinary process.
However, the Court will not entertain a substantive
challenge to Duke’s disciplinary decision or
otherwise open up any type of “educational
malpractice” claim. The Court will look closely at
summary judgment to determine if Plaintiffs have
presented evidence of a breach of a specifically
enforceable, procedural promise.
Based on all of these determinations, the
Court concludes that the breach of contract claims
against the individual Defendants Steel, Brodhead,
Lange, Moneta, and Bryan, will be dismissed. In
addition, the breach of contract claim against Duke
will proceed only on a limited basis with regard to
275a
the alleged failure to follow promised procedures in
the disciplinary process. The other bases for the
breach of contract claim against Duke will be
dismissed.
Count 22:
Invasion of Privacy, asserted
against Steel, Brodhead, Lange,
Trask, Burness, Moneta, Dzau,
Haltom, Dawkins, Graves, Dean,
Humphries,
Cooper,
Garber,
Schwab, Fleming, Best, and Duke
In Count 22, Plaintiffs bring a state law claim
for invasion of privacy against Duke and various
Duke employees. As the basis for the claim,
Plaintiffs assert that Duke, acting through its
employees, intruded upon Plaintiffs’ seclusion or
private affairs by (1) invading their homes; (2)
collecting and disseminating their financial and
educational (Duke Card) records; (3) opening their
private e-mail accounts; and (4) subjecting them to
harassment on campus and in their homes. Although
this claim is asserted against Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, Haltom,
Dawkins, Graves, Dean, Humphries, Cooper,
Garber, Schwab, Fleming, and Best individually,
Plaintiffs do not allege which individuals they
contend engaged in the challenged conduct, and
instead the allegations contend only generally that
Duke invaded Plaintiffs’ privacy through the named
Defendants and other employees.
The North Carolina Supreme Court has
identified four types of claims for invasion of privacy:
“(1) appropriation, for the defendant’s advantage, of
276a
the plaintiff’s name or likeness; (2) intrusion upon
the plaintiff’s seclusion or solitude or into his private
affairs; (3) public disclosure of embarrassing private
facts about the plaintiff; and (4) publicity which
places the plaintiff in a false light in the public eye.”
Renwick v. News & Observer Publ’g Co., 310 N.C.
312, 322, 312 S.E.2d 405, 411 (1984). However,
North Carolina does not recognize the third and
fourth types of these claims. See id. at 323, 312
S.E.2d at 412; Miller v. Brooks, 123 N.C. App. 20, 25,
472 S.E.2d 350, 354 (1996); see also Sabrowski v.
Albani-Bayeux, Inc., 1:02CV00728, 2003 WL
23018827, at *10 (M.D.N.C. Dec. 19, 2003). With
respect to the first type of claim, Plaintiffs in this
case do not assert a claim for appropriation of name
or likeness. Therefore, Plaintiffs in this case are
attempting to assert the second type of claim,
intrusion upon seclusion. North Carolina courts have
held that intrusion upon seclusion is “the intentional
intrusion physically or otherwise, upon the solitude
or seclusion of another or his private affairs or
concerns . . . [where] the intrusion would be highly
offensive to a reasonable person.” Toomer v. Garrett,
155 N.C. App. 462, 479, 574 S.E.2d 76, 90 (2002)
(internal quotations omitted). “[The] tort does not
depend upon any publicity given a plaintiff or his
affairs but generally consists of an intentional
physical or sensory interference with, or prying into,
a person’s solitude or seclusion or his private affairs.
Some examples of intrusion include physically
invading a person’s home or other private place,
eavesdropping by wiretapping or microphones,
peering through windows, persistent telephoning,
unauthorized prying into a bank account, and
opening personal mail of another.” Burgess v. Busby,
277a
142 N.C. App. 393, 405-06, 544 S.E.2d 4, 11 (2001)
(internal citation omitted) (quoting Hall v. Post, 85
N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987), rev’d
on other grounds, 323 N.C. 259, 372 S.E.2d 711
(1988)).
With respect to the claim alleged in Count 22,
Plaintiffs assert this claim against Steel, Brodhead,
Lange, Trask, Burness, Moneta, Dzau, Haltom,
Dawkins, Graves, Dean, Humphries, Cooper,
Garber, Schwab, Fleming, and Best individually.
However, Plaintiffs do not allege any factual basis to
assert a plausible claim that any of these named
Defendants physically invaded Plaintiffs’ residences
or directly engaged in any conduct that would
constitute an intrusion upon seclusion under state
law. Instead, Plaintiffs base this claim on the
protests that occurred at Plaintiffs’ residences and
on campus, the media coverage, and the harassment
by other students and faculty members on and off
campus. However, Plaintiffs do not state a plausible
claim that any of the named Defendants themselves
participated in the protests or other alleged conduct,
or otherwise physically invaded upon Plaintiffs’
privacy or seclusion. Plaintiffs generally contend
that other students and faculty members engaged in
this conduct, but there is not a sufficient basis to
hold the named Defendants responsible for an
intrusion upon seclusion allegedly perpetrated by
other students, faculty members, or members of the
media. Therefore, Plaintiffs have failed to state a
claim against Steel, Brodhead, Lange, Trask,
Burness, Moneta, Dzau, Haltom, Dawkins, Graves,
Dean, Humphries, Cooper, Garber, Schwab,
Fleming, and Best for intrusion upon seclusion.
278a
Likewise with respect to the claim for
intrusion upon seclusion against Duke itself,
Plaintiffs cannot state a claim for intrusion upon
seclusion based on actions by third parties such as
students or members of the media. Plaintiffs contend
that they were subject to harassment by Duke
faculty members or other employees on campus and
off that intruded upon Plaintiffs’ seclusion, and that
the faculty members were operating in the scope of
their employment, so that Duke is therefore
responsible for their tortious conduct. However, it is
unclear which specific faculty members Plaintiffs
contend intruded upon their seclusion. To the extent
that Plaintiffs contend that faculty members
engaged in public protests, such participation in a
public protest would not constitute intrusion upon
seclusion under state law, nor is there a sufficient
basis alleged that would support the contention that
faculty members engaging in off-campus protests
were operating in the scope of their employment
with Duke. To the extent that the claim is based on
alleged confrontations between faculty members and
team members during class or on campus, none of
those allegations would constitute intrusion upon
seclusion under state law. Therefore, although the
Second Amended Complaint alleges conduct by
faculty members that is certainly questionable, those
allegations do not state a claim against Duke or any
of the named Defendants for the state law claim of
intrusion upon seclusion.
As discussed with respect to Count 2,
Plaintiffs do allege that Duke Police Officer Smith
observed the execution of the search warrant for
McFadyen’s dorm room. However, Plaintiffs do not
279a
allege that Smith actually entered McFadyen’s room.
Therefore, the alleged conduct by Smith, observing
Durham Police execute a search warrant, does not
state a claim for intrusion upon seclusion. Plaintiffs
also contend that Duke Police officers assisted
Himan and Gottlieb in gaining access to the dorm
building where most of the sophomore team
members lived. However, Plaintiffs do not allege
that any Duke Defendant entered into any students’
residence or dorm room. Instead, this allegation
relates to conduct by the Durham Investigators.
Moreover, Plaintiffs fail to provide any details
regarding this alleged intrusion, and the only
specific allegation is that Gottlieb and Himan
“cornered Michael Young (who is not a Plaintiff in
this case), and coaxed him into his room” and
questioned him regarding who was at the party.
Therefore, the Court concludes that Plaintiffs have
failed to state a claim for intrusion upon seclusion
against Duke or the other named Defendants for
“invading their homes.”
Plaintiffs also contend that the collection and
release of their “financial and educational records”
could be an intrusion upon seclusion. However,
Plaintiffs do not have a reasonable expectation of
privacy in a record of their public comings and
goings or in information submitted to a third party.
United States v. Knotts, 460 U.S. 276, 280, 103 S.
Ct. 1081, 1084-85, 75 L. Ed. 2d 55 (1983); United
States v. Miller, 425 U.S. 435, 442-43, 96 S. Ct. 1619,
1623-24, 48 L. Ed. 2d 71 (1976). To the extent that
Plaintiff may be contending that release of that
information violated the Family Educational Rights
and Privacy Act (“FERPA”), there is no private right
280a
of action under FERPA, and a violation of FERPA
does not create a state tort claim for invasion of
privacy. Plaintiffs also contend that opening their
private e-mail accounts was an intrusion upon
seclusion, but Plaintiffs do not present factual
allegations sufficient to state a plausible claim
against Duke for opening Plaintiffs’ e-mail accounts.
Therefore, the Court concludes that Plaintiffs
have failed in any respect to state a claim for the
state tort of Invasion of Privacy by the named
Defendants, and the claims asserted in Count 22 will
be dismissed.
Count 23:
Breach of Fiduciary Duty and
Aiding and Abetting, asserted
against Steel, Drummond, Dawkins,
Moneta, Bryan, Duke, Gottlieb,
Himan, Ripberger, Lamb, Council,
Hodge, Chalmers, Baker, Nifong,
and the City
In Count 23, Plaintiffs assert a state common
law claim for breach of fiduciary duty against
various Duke and City employees. As the basis for
this claim, Plaintiffs allege that they were in a
fiduciary relationship with Steel, Drummond,
Dawkins, Moneta, Bryan, and Duke, because those
Defendants were in a “position of special confidence
and trust” with regard to Plaintiffs’ financial and
educational records and e-mail accounts. (Second
Am. Compl. ¶ 1237). Plaintiffs further contend that
this relation of trust and confidence imposed a
fiduciary duty on the Defendants to protect
Plaintiffs’ accounts from unauthorized disclosure
281a
and to notify Plaintiffs of any disclosure.72 Plaintiffs
allege that Steel, Drummond, Dawkins, Moneta,
Bryan, and other unknown Duke employees
breached their fiduciary duties to Plaintiffs with
respect to these records by accessing and disclosing
to Nifong and Gottlieb the Plaintiffs’ private e-mail
accounts, the Plaintiffs’ Duke Card information, and
Plaintiffs’ educational records, with the intent to
injure Plaintiffs and to promote Duke’s interests.
Plaintiffs further allege that Himan, Gottlieb,
Nifong, Ripberger, Lamb, Council, Hodge, Chalmers,
Baker, and the City were aware of the breach of
fiduciary duty and provided assistance in that
breach by assisting in accessing the accounts, and by
expediting analysis of information in the accounts,
and by participating in a cover-up after subpoenas
72 As part of the basis for the fiduciary relationship,
Plaintiffs allege that “[t]he agreement between Plaintiffs and
Duke University governing the Plaintiffs’ Duke-issued
transaction cards required Duke University to safeguard the
privacy of Plaintiffs’ personal financial accounts on deposit with
Duke University and the privacy of reports of Plaintiffs’
account activity with their Duke financial transaction cards.”
(Second Am. Compl. ¶ 1239). This agreement was also raised in
the breach of contract claim, and as discussed previously, Duke
submitted the “Duke Card Terms and Conditions” as an exhibit
to the Motion to Dismiss. However, as with the breach of
contract claim, Plaintiffs object to consideration of that
document, and Plaintiffs contend that they do not claim that
disclosure of their financial information breached this
agreement. Instead, Plaintiffs contend that their claim for
breach of fiduciary duty is based on the contention that
disclosure of the information violated state and federal privacy
laws. Therefore, Plaintiffs have disavowed reliance on any
“agreement” to support their contentions regarding the release
of the Duke Card information, and the Court has not and need
not consider the Duke Card Terms and Conditions in analyzing
the Motions to Dismiss.
282a
were issued for records that had already been
provided.
“To state a claim for breach of fiduciary duty,
a plaintiff must allege that a fiduciary relationship
existed and that the fiduciary failed to ‘act in good
faith and with due regard to [plaintiff’s] interests[.]’”
Toomer v. Branch Banking & Trust Co., 171 N.C.
App. 58, 70, 614 S.E.2d 328, 337 (2005) (citation
omitted). However, the student-administrator
relationship is not generally a fiduciary relationship.
The North Carolina Court of Appeals has held that
interactions between “educators/supervisors” and
medical residents do not create a fiduciary
relationship, because “[a]lthough defendants were
plaintiff’s teachers and advisors, they also had to
serve other interests” including the objectives of the
institution and the interests of the public. Ryan v.
Univ. of N.C. Hosps., 168 N.C. App. 729, 2005 WL
465554, at *4 (N.C. Ct. App. Mar. 1, 2005) (table
opinion). Therefore, “[b]ecause defendants had
divided loyalties,” the court concluded that the case
was “unlike other fiduciary relationships in which
the fiduciary must act primarily for the benefit of
another.” Id. The court in Ryan also noted that
“[o]ther jurisdictions have been reluctant to find
fiduciary relationships in academic settings,” id.,
citing the decision of the South Carolina Supreme
Court in Hendricks v. Clemson University, in which
the court “decline[d] to recognize the relationship
between advisor and student as a fiduciary one.” Id.
(quoting Hendricks v. Clemson Univ., 578 S.E.2d
711, 716 (S.C. 2003)).
283a
Plaintiffs nevertheless contend that a
fiduciary relationship exists between them and Duke
as keeper of their “educational and financial
records.” Specifically, Plaintiffs contend that
“[f]ederal banking laws and state banking laws
required Duke University to safeguard the privacy of
Plaintiffs’ Duke Card Account transactions.” (Second
Am. Compl. ¶ 1240). To the extent Plaintiffs are
claiming the existence of a fiduciary relationship
based on the Family Educational Rights and Privacy
Act (“FERPA”), the Court notes that the provisions
of FERPA, 20 U.S.C. § 1232g, “prohibit the federal
funding of educational institutions that have a policy
or practice of releasing education records to
unauthorized persons.” See Gonzaga Univ. v. Doe,
536 U.S. 273, 276, 122 S. Ct. 2268, 2271, 153 L. Ed.
2d 309 (2002). However, FERPA does not establish a
fiduciary relationship, and the Supreme Court has
clearly held that there is no private right of action
under FERPA. Therefore, the Court concludes that a
violation of FERPA does not create a state tort claim
for breach of fiduciary duty.
Plaintiffs nevertheless contend in their
briefing that this claim is based on violation of the
North Carolina Privacy Act, N.C. Gen. Stat. § 53B-1
to 10. However, that statute only applies to
“financial institutions” that are “principally engaged
in the business of lending money or receiving or
soliciting money on deposit” and under that statute,
a “financial record” is a record held by such an
institution N.C. Gen. Stat. § 53B-2. Therefore, it
does not appear that this statute would apply to
Duke. Moreover, there is no legal basis to conclude
that this statute creates fiduciary relationship
284a
between a university and its students that would
support a state common law claim for breach of
fiduciary duty. Therefore, the Court concludes that
Plaintiffs have failed to state a claim for breach of
fiduciary duty.
In addition, the Court notes that Plaintiffs cite
no support for asserting a claim for breach of
fiduciary duty against police officers and City
officials, or for a claim of “aiding and abetting” a
breach of fiduciary duty in these circumstances. In
any event, since there is no claim for breach of
fiduciary duty, there is also no claim for “aiding and
abetting” by the other named Defendants. Therefore,
the Motions to Dismiss Count 23 will be granted and
the claims alleged in Count 23 will be dismissed.
Count 24:
Fraud,
asserted
against
Drummond, Smith, Dean, Graves,
and Duke
In Count 24, Plaintiffs assert a state law claim
for fraud. As the basis for this claim, Plaintiffs allege
that after their Duke Card information had already
been provided to Durham Police, Drummond sent a
letter to Plaintiffs notifying them that their Duke
Card transaction records had been subpoenaed by
Nifong. The letters advised Plaintiffs that they
would need to move to quash the subpoena if they
wished to preserve the privacy of their records, but
did not advise Plaintiffs that the records had already
been provided to Gottlieb, Himan, and Nifong.
Plaintiffs allege that Drummond’s letter contained
false representations that Drummond knew were
false, and that Drummond acted with intent to
285a
deceive Plaintiffs and intent to cover up the prior
disclosure. Plaintiffs allege that they were deceived
and that as a result of the false representations, they
obtained counsel and successfully moved to quash
the subpoenas, even though the information had
already been provided to Durham Police. Plaintiffs
allege that Drummond was acting within the course
and scope of his employment with Duke, and that
Duke employees Smith, Stotsenberg, Dean, and
Graves knew that the transaction records had
already been provided to Gottlieb, Himan, and
Nifong.
Under North Carolina law, “the following
essential elements of actual fraud are well
established:
‘(1)
[f]alse
representation
or
concealment of a material fact, (2) reasonably
calculated to deceive, (3) made with intent to
deceive, (4) which does in fact deceive, (5) resulting
in damage to the injured party.’” Forbis v. Neal, 361
N.C. 519, 526-27, 649 S.E.2d 382, 387 (quoting
Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d
494, 500 (1974)). Such a claim requires a showing
that the “plaintiff acted or refrained from acting in a
certain manner due to defendant’s representations”
and that the plaintiff’s reliance on the false
representations was “justified or reasonable.”
Pleasant Valley Promenade v. Lechmere, Inc., 120
N.C. App. 650, 663, 464 S.E.2d 47, 57 (1995). In
cases
alleging
fraudulent
concealment
or
nondisclosure, the plaintiff “must additionally allege
that all or some of the defendants had a duty to
disclose material information to him as silence is
fraudulent only when there is a duty to speak.”
Breeden v. Richmond Cmty. Coll., 171 F.R.D. 189,
286a
194 (M.D.N.C. 1997). A duty to disclose may arise
from the existence of a fiduciary relationship or
where “one party has taken affirmative steps to
conceal material facts from the other.” Id. at 196. A
duty to disclose may also arise in “other attendant
circumstances,” and in this regard North Carolina
courts have recognized that while a defendant may
not initially be under a duty to speak, once the
defendant does speak, he is “required to make a full
and fair disclosure as to the matters discussed.”
Shaver v. N.C. Monroe Constr. Co., 63 N.C. App.
605, 614, 306 S.E.2d 519, 525 (1983); see also
Breeden, 171 F.R.D. at 194 n.4 (noting that courts
have held that “a duty to disclose in the absence of a
fiduciary relationship could arise if a party makes
partial ambiguous statements which require other
disclosures to prevent confusion”); Wicker v. Worthy,
51 N.C. (6 Jones) 500, 1859 WL 2087, at *2 (1859)
(noting that “mere silence” may not be sufficient to
create a claim, but if the defendant “says or does any
thing intended and calculated to create [a false]
impression . . . he will be liable to the action”). Thus,
“even if a party otherwise has no duty to disclose a
particular matter, should that party speak about it,
then a full and fair disclosure may be required.”
Breeden, 171 F.R.D. at 196.
In considering whether Plaintiffs have
sufficiently alleged a claim of fraud in the present
case, the Court also notes that under Federal Rule of
Civil Procedure 9(b), “[i]n alleging fraud or mistake,
a party must state with particularity the
circumstances constituting fraud or mistake.” Fed.
R. Civ. P. 9(b). Generally, to satisfy this
requirement, a plaintiff must identify the time, the
287a
place, and the contents of the allegedly false
statements, the identity of the person making the
representation, and what was obtained as a result of
the fraudulent misrepresentation. See Breeden, 171
F.R.D. at 195 (noting that “courts generally require
that a plaintiff plead the time, place, and contents of
the alleged fraudulent misrepresentation, as well as
the identity of each person making the
misrepresentation and what was obtained thereby”
(internal quotations omitted)); S.N.R. Mgmt. Corp. v.
Danube Partners 141, LLC, 189 N.C. App. 601, 610,
659 S.E.2d 442, 449 (2008). Moreover, “[i]n order to
comply with the pleading requirements of Rule 9(b)
with respect to fraud by omission, a plaintiff usually
will be required to allege the following with
reasonable particularity: (1) the relationship or
situation giving rise to the duty to speak, (2) the
event or events triggering the duty to speak, and/or
the general time period over which the relationship
arose and the fraudulent conduct occurred, (3) the
general content of the information that was withheld
and the reason for its materiality, (4) the identity of
those under a duty who failed to make such
disclosures, (5) what those defendant(s) gained by
withholding information, (6) why plaintiff’s reliance
on the omission was both reasonable and
detrimental, and (7) the damages proximately
flowing from such reliance.” Breeden, 171 F.R.D. at
195. “However, a court should hesitate to dismiss a
complaint under Rule 9(b) if the court is satisfied:
‘(1) that the defendant has been made aware of the
particular circumstances for which [it] will have to
prepare a defense at trial, and (2) that plaintiff has
substantial prediscovery evidence of those facts.’”
Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250 (D.
288a
Md. 2000) (citation omitted). Finally, “[a]llegations of
fraud may be made ‘upon information and belief’
only when the matters are particularly within the
defendants’ knowledge, and facts are stated upon
which the belief is founded.” Breeden, 171 F.R.D. at
197 (citing Andrews v. Fitzgerald, 823 F. Supp.
356, 375 (M.D.N.C. 1993)).
Based on these standards and the allegations
set out in the Second Amended Complaint, the Court
concludes that Plaintiffs have sufficiently alleged a
claim for fraud against Duke, based on the
allegations against Drummond, Smith, Graves, and
Dean as Duke employees. In the Second Amended
Complaint, Plaintiffs allege that Drummond, Smith,
Graves, and Dean acted to “cover up” the prior
disclosure of the Duke Card records by making a
false representation or concealment of a material
fact in the letters that Drummond sent to Plaintiffs.
Specifically, Plaintiffs allege that Drummond, Smith,
Graves, and Dean knew that the Duke Card Records
had previously been disclosed to Durham police, and
that Drummond nevertheless sent the letters
implicitly representing that the Duke Card reports
had not been previously disclosed. Plaintiffs have
alleged that the misrepresentation was intended to
deceive in order to “cover up” and avoid potential
liability for the previous disclosure. Plaintiffs allege
that the letters did in fact deceive the recipients,
causing them to incur specific expenses that they
would not otherwise have incurred. Consistent with
Rule 9, Plaintiffs have alleged the time, place, and
content of the false representations, based on the
letters that were sent to the players and their
counsel on or about June 1, 2006. To the extent that
289a
this claim is based on a fraudulent omission,
Plaintiffs have identified the general content of the
information that was withheld and the reason for its
materiality, and the identity of those who failed to
make such disclosures. Plaintiffs have also alleged
the relationship and events giving rise to the duty to
speak, based on the actions of Drummond in
undertaking to send the letters. Of course, it will
ultimately be Plaintiffs’ burden to prove all of the
elements of this claim, including that Drummond
was aware that the Duke Card reports had
previously been provided to the Durham police, in
order to establish the requisite intent to deceive. Cf.
Ausley v. Bishop, 133 N.C. App. 210, 217, 515 S.E.2d
72, 78 (1999) (“For actionable fraud to exist, [the
defendant] ‘must have known the representation to
be false when making it . . . .’” (quoting Fulton v.
Vickery, 73 N.C. App. 382, 388, 326 S.E.2d 354, 358
(1985)).73 However, at this stage in the case,
Plaintiffs have sufficiently alleged this claim of fraud
as to Drummond, acting in the course and scope of
his employment as an employee of Duke.
Therefore, the Motions to Dismiss Count 24
will be denied, and the claim asserted in Count 24
will go forward as to Defendants Smith, Graves,
Dean, Drummond, and Duke.
Likewise as to Smith, Graves, and Dean, although
Plaintiffs have alleged that they collaborated with Drummond
in making the false representations in the letters, it will be
Plaintiffs’ burden to ultimately establish Smith’s, Graves’ and
Dean’s direct involvement in the false representations to the
players and their attorneys.
73
290a
Count 25:
Negligence,
asserted
against
Gottlieb, Himan, Addison, Michael,
Russ, Hodge, and the City
In Count 25, Plaintiffs assert a state common
law claim for negligence against several of the
Durham Police Officers in their “individual and
official capacities” and against the City. As the basis
for this claim, Plaintiffs allege that Gottlieb, Himan,
Addison, Michael, Russ, and Hodge owed Plaintiffs a
duty of care with respect to “public statements” and
with respect to the “investigation of Mangum’s
allegations,” but failed to exercise due care, causing
injury to Plaintiffs. (Second Am. Compl. ¶ 12621263).
This claim was asserted against the
individually named Defendants in both their official
and individual capacities, but Plaintiffs concede that
the “official capacity” claims are duplicative of the
claim against the City and may be dismissed. With
respect to the “individual capacity” claims, the
individual Defendants have raised the defense of
public official immunity to the extent that the claims
are asserted against them in their individual
capacities. “The public immunity doctrine protects
public officials from individual liability for
negligence in the performance of their governmental
or discretionary duties.” Campbell v. Anderson, 156
N.C. App. 371, 376, 576 S.E.2d 726, 730 (2003); see
also Thomas v. Sellers, 142 N.C. App. 310, 313, 542
S.E.2d 283, 286 (2001) (noting that under state law,
a public officer is not liable in his individual capacity
unless his conduct is “malicious, corrupt, or outside
the scope of his official authority”); Moore v. Evans,
291a
124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996).
The named Defendants therefore contend that any
state law negligence claims against them in their
individual capacities are barred by public official
immunity. In their Responses, Plaintiffs contend
that “much of Supervising Defendants’ conduct was
inspired by a malicious, and corrupt conduct” and
that public official immunity should not apply. (Pl.’s
Resp., Doc. #78, at 44). However, the claims asserted
in Count 25 are claims for negligence, not for
intentional torts, and Plaintiffs have not presented
any sufficient reason why public official immunity
would not apply to claims for negligence against
these public officials. Therefore, the “individual
capacity” claims asserted in Count 25 will be
dismissed on the basis of public official immunity.
However, to the extent that this claim is
asserted against the City, the Court concludes that
this claim should go forward at the time. As
discussed below with respect to Count 41, there are
many overlapping issues raised with respect to the
claims against the City, including governmental
immunity, waiver of that immunity, alternative
claims under the North Carolina Constitution, and
issues and defenses that require consideration on an
evidentiary record beyond what is asserted in the
Second Amended Complaint. The Court has already
determined that there are claims going forward
against the City as discussed above with respect to
Counts 1, 2, and 5 (as asserted against the City in
Counts 12 and 14) and in Count 18. The Court
therefore concludes that further analysis of the other
alternative claims against the City under state law
are best resolved at summary judgment rather than
292a
on the present Motions to Dismiss.74 Therefore, the
Motions to Dismiss will be granted on the basis of
74 The Court notes that the City raises the “public duty
doctrine,” contending that the City is not liable for negligence
in failing to perform a public duty such as an investigation.
Pursuant to the public duty doctrine, “governmental entities
have no duty to protect particular individuals from harm by
third parties, thus no claim may be brought against them for
negligence.” Wood v. Guilford County, 355 N.C. 161, 166, 558
S.E.2d 490, 495 (2002). This doctrine is based on the rule that
“a municipality and its agents act for the benefit of the public,
and therefore, there is no liability for the failure to furnish
police protection to specific individuals.” Braswell v. Braswell,
330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991). However,
Plaintiffs in the present case raise exceptions to the public duty
doctrine. The exceptions to the public duty doctrine arise: “(1)
where there is a special relationship between the injured party
and the police,” and “(2) ‘when a municipality, through its
police officers, creates a special duty by promising protection to
an individual, the protection is not forthcoming, and the
individual’s reliance on the promise of protection is causally
related to the injury suffered.’” Id. at 371, 410 S.E.2d at 902
(citation omitted). Plaintiffs also note that according to the
North Carolina Supreme Court, “[t]he purpose of the doctrine,
as noted in Braswell, is to respect the limited resources of law
enforcement agencies by relieving them of liability for failure to
prevent every criminal act.” Multiple Claimants v. N.C. Dep’t of
Health and Human Servs., 361 N.C. 372, 374, 646 S.E.2d 356,
358 (2007). In considering the application of this doctrine in the
present case, the Court notes that recent state cases have
stated that the public duty doctrine does not apply “when a
police officer’s affirmative actions have directly caused harm to
a plaintiff.,” Scott v. City of Charlotte, 691 S.E.2d 747, 752
(N.C. Ct. App. 2010), and that the public duty doctrine does not
bar claims based on intentional misconduct. See, e.g., Smith v.
Jackson County Bd. Of Educ., 168 N.C. App. 452, 459, 608
S.E.2d 399, 406 (2005) (noting that claims against a City based
on intentional conduct by an officer were not barred by the
public duty doctrine). The Court will therefore consider this
issue further at summary judgment to the extent that
Plaintiffs’ claims against the City are based in negligence and
293a
public official immunity as to Gottlieb, Himan,
Addison, Michael, Russ, and Hodge, but the Motions
to Dismiss will be denied as to the City, and the
claims against the City in Count 25 will go forward.
Count 26:
Negligent
Hiring,
Retention,
Supervision,
Training
and
Discipline, asserted against Baker,
Chalmers, Hodge, Russ, Mihaich,
Council, Lamb, Ripberger, Evans,
Soukup, and the City
In Count 26, Plaintiffs assert a state common
law claim for negligence against the Durham Police
Supervisors, named as Defendants in this Count, in
their “individual and official capacities” and against
the City. As the basis for this claim, Plaintiffs allege
that the Supervisors and the City owed Plaintiffs a
duty to use due care in the hiring, training,
supervision, discipline, and retention of Durham
Police personnel, but negligently supervised Gottlieb
by failing to discipline him for his prior abuse of
authority as to Duke Students, negligently
supervised Himan by allowing him to be assigned to
the investigation despite his lack of experience, and
negligently supervised Addison, Michael, Gottlieb,
and Himan with respect to the conduct of criminal
investigations. In addition, Plaintiffs allege that the
Supervisors and the City negligently supervised
Himan and Gottlieb by ignoring Himan and
could be barred, at least to some extent, by the public duty
doctrine. However, given the factual issues raised, as well as
the remaining claims against the City and the need for further
proceedings against the City as to those claims, the Court will
not resolve the application of the public duty doctrine at this
time.
294a
Gottlieb’s misconduct and continuing to order them
to follow Nifong’s directions, and that the
Supervisors and City negligently supervised Addison
by failing to retract his statements or discipline him.
As with the previous Count, this claim is
asserted against the individually-named Defendants
in both their official and individual capacities.
However, as noted above, the individual Defendants
have raised the defense of public official immunity to
the extent that the claims are asserted against them
in their individual capacities, noting that “[t]he
public immunity doctrine protects public officials
from individual liability for negligence in the
performance of their governmental or discretionary
duties.” Campbell v. Anderson, 156 N.C. App. 371,
376, 576 S.E.2d 726, 730 (2003); see also Thomas v.
Sellers, 142 N.C. App. 310, 313, 542 S.E.2d 283, 286
(2001); Moore v. Evans, 124 N.C. App. 35, 42, 476
S.E.2d 415, 421 (1996). In their Responses, Plaintiffs
do not dispute this contention as to Count 26, and
Plaintiffs do not oppose the Motions to Dismiss as to
Count 26 with respect to the claims asserted against
the individual Defendants in their individual
capacities.75 However, to the extent that this claim is
asserted against the City, the Court concludes that
this claim should go forward at the time. As
discussed below with respect to Count 41, there are
The Court further notes that the claims against the
individuals would also be subject to dismissal in any event
because a claim for negligent hiring, supervision or retention
under state law is a claim against the employer, not the
supervisors. See Foster v. Crandell, 181 N.C. App. 152, 170-71,
638 S.E.2d 526, 538-39 (2007); Ostwalt v. CharlotteMecklenburg Bd. of Educ., 614 F. Supp. 2d 603, 609 (W.D.N.C.
2008).
75
295a
many overlapping issues raised with respect to the
claims against the City, including governmental
immunity, waiver of that immunity, alternative
claims under the North Carolina Constitution, and
issues and defenses that require consideration on an
evidentiary record beyond what is asserted in the
Second Amended Complaint. The Court has already
determined that there are claims going forward
against the City as discussed above with respect to
Counts 1, 2, and 5 (as asserted against the City in
Counts 12 and 14) and in Count 18. The Court
therefore concludes that further analysis of the other
alternative claims against the City under state law
are best resolved at summary judgment rather than
on the present Motions to Dismiss.76 Therefore, the
Motions to Dismiss will be granted, with Plaintiffs’
consent, on the basis of public official immunity as to
Baker, Chalmers, Hodge, Russ, Mihaich, Council,
Lamb, Ripberger, Evans, and Soukup, but the
Motions to Dismiss will be denied as to the City, and
the claims against the City as to Count 26 will go
forward.
76 To the extent that the City also raises the public duty
doctrine as a defense to this claim, the public duty doctrine is
discussed in the notes addressing Count 25. However, the
North Carolina Court of Appeals has concluded that the public
duty doctrine would not apply to claims of negligent
supervision. See Smith v. Jackson County Bd. of Educ., 168
N.C. App. 452, 467, 608 S.E.2d 399, 410-11 (2005) (“In
Braswell, . . . . [t]he Supreme Court applied the public duty
doctrine only to the negligent failure to protect claim; it
addressed the merits of the negligent supervision and retention
claim. As this Court observed in Leftwich: ‘[T]he public duty
doctrine is not incompatible with negligent supervision.’”
(quoting Leftwich v. Gaines, 134 N.C. App. 502, 514, 521 S.E.2d
717, 726 (1999))).
296a
Count 27:
Negligent Infliction of Emotional
Distress, asserted against Gottlieb,
Himan, Ripberger, Lamb, Council,
Hodge, Mihaich, Addison, Russ,
Chalmers, Duke, and the City
In Count 27, Plaintiffs assert a state common
law claim for negligent infliction of emotional
distress against several of the Durham Police
Officers in their “individual and official capacities”
and against the City and Duke. As the basis for this
claim, Plaintiffs allege that Addison, Michael,
Hodge, Chalmers, the City, and Duke acted
individually and in concert to “subject Plaintiffs to
national and international public infamy,” that
Gottlieb,
Himan,
Hodge,
Ripberger,
Lamb,
Chalmers, and the City acted individually to
manufacture false evidence and conceal exculpatory
evidence, and that Gottlieb, Himan, Nifong, Meehan,
Clark, and DSI acted individually and in concert in
violation of policies and professional standards, in
failing to provide Plaintiffs with the DNA test
results.77 (Second Am. Compl. ¶ 1278-1280).
Plaintiffs allege that as a result, Plaintiffs “have
suffered and continue to suffer from diagnosable
emotional and mental conditions causing disabling
emotional, mental, and physical harm.” (Second Am.
Compl. ¶ 1282).
In order to state a claim for Negligent
Infliction of Emotional Distress (“NIED”) under
Count 27 is not asserted against Michael, Meehan,
Clark or DSI. Count 27 is asserted against Council, Mihaich
and Russ, but there are no factual allegations as to those
Defendants in Count 27.
77
297a
North Carolina law, “a plaintiff must allege that (1)
the defendant negligently engaged in conduct, (2) it
was reasonably foreseeable that such conduct would
cause the plaintiff severe emotional distress . . . , and
(3) the conduct did in fact cause the plaintiff severe
emotional distress.” McAllister v. Khie Sem Ha, 347
N.C. 638, 645, 496 S.E.2d 577, 582-83 (1998)
(quoting Johnson v. Ruark Obstetrics & Gynecology
Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97
(1990), reh’g denied, 327 N.C. 644, 399 S.E.2d 133
(1990)). Thus, to state a claim for NIED, Plaintiffs
must allege a sufficient basis to support the
contention that they each suffered “severe emotional
distress” under North Carolina law, and that the
“severe emotional distress was the foreseeable and
proximate result” of Defendants’ alleged negligence.
Id. at 645, 496 S.E.2d at 583. As with a claim for
intentional infliction of emotional distress, “severe
emotional distress” requires an “emotional or mental
disorder . . . which may be generally recognized and
diagnosed by professionals trained to do so.” Id.
However, Plaintiffs have failed to include any
specific allegations of emotional or mental disorders
or severe and disabling emotional or mental
conditions suffered by any of the Plaintiffs, and the
Second Amended Complaint does not include any
specific identification of any particular Plaintiff’s
mental or emotional condition or the nature of their
emotional distress. Cf. Holleman v. Aiken, 193 N.C.
App. 484, 502, 668 S.E.2d 579, 591 (2008)
(dismissing NIED claim because “plaintiff does not
make any specific factual allegation as [to] her
‘severe emotional distress’); Swaim v. Westchester
Acad., Inc., 170 F. Supp. 2d 580, 585 (M.D.N.C.
2001). Therefore, Defendants’ Motions to Dismiss
298a
will be granted as to Count 27, and Plaintiffs’ claims
for negligent infliction of emotional distress in Count
27 will be dismissed.78
Count 28:
Negligent Infliction of Emotional
Distress, asserted against Nifong,
Addison, Michael, Baker, Chalmers,
Hodge, Russ, Mihaich, Council,
Lamb, Ripberger, Evans, Soukup,
and the City
In Count 28, Plaintiffs assert a state common
law claim for negligent infliction of emotional
distress against several of the Durham Police
Officers in their “individual and official capacities”
and against the City and Nifong. As the basis for
this claim, Plaintiffs allege that the named
Defendants79 acted individually and in concert to
make false and inflammatory statements accusing
Plaintiffs of criminal conduct and accusing Plaintiffs
of failing to cooperate in the investigation. Plaintiffs
allege that as a result, Plaintiffs “have suffered and
continue to suffer from diagnosable conditions
In addition, as discussed with respect to Counts 25
and 26, to the extent that this claim is asserted against the
individual Defendants in their individual capacities, those
Defendants have asserted public official immunity. In their
Responses, Plaintiffs do not dispute this contention, and
Plaintiffs do not oppose the Motions to Dismiss as to Count 27
with respect to the individual Defendants in their individual
capacities. Therefore, the Motions to Dismiss will be granted on
that basis as well.
78
Although this claim is asserted against Defendant
Michael, the factual allegations do not include Defendant
Michael.
79
299a
causing disabling emotional, mental, and physical
harm.” (Second Am. Compl. ¶ 1288).
As discussed above, in order to state a claim
for Negligent Infliction of Emotional Distress
(“NIED”) under North Carolina law, Plaintiffs must
allege a sufficient basis to support the contention
that they each suffered “severe emotional distress”
under North Carolina law, and that the “severe
emotional distress was the foreseeable and
proximate result” of Defendants’ alleged negligence.
McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496
S.E.2d 577, 583 (1998). As with a claim for
intentional infliction of emotional distress, “severe
emotional distress” requires an “emotional or mental
disorder . . . which may be generally recognized and
diagnosed by professionals trained to do so.” Id.
However, Plaintiffs have failed to include any
specific allegations of emotional or mental disorders
or severe and disabling emotional or mental
conditions suffered by any of the Plaintiffs, and the
Second Amended Complaint does not include any
specific identification of any particular Plaintiff’s
mental or emotional condition or the nature of their
emotional distress. Cf. Holleman v. Aiken, 193 N.C.
App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v.
Westchester Acad., Inc., 170 F. Supp. 2d 580, 585
(M.D.N.C. 2001). Therefore, Defendants’ Motions to
Dismiss will be granted as to Count 28, and
Plaintiffs’ claims for negligent infliction of emotional
distress in Count 28 will be dismissed.80
In addition, as discussed with respect to Counts 25
and 26, to the extent that this claim is asserted against the
individual Defendants in their individual capacities, those
Defendants have asserted public official immunity. In their
80
300a
Count 29:
Negligence, asserted against Duke
and the Duke Police Department
In Count 29, Plaintiffs assert a state common
law claim for negligence against Duke and the Duke
Police Department. As the basis for this claim,
Plaintiffs allege that the Duke Police Department
had “primary jurisdiction” and statutory authority
over the investigation of Mangum’s claims, but
abdicated its obligations and ceded its authority to
Gottlieb. Plaintiffs allege that the Duke Police
Department employees were negligent in their
investigation and were negligent in their failure to
insist or demand that Duke Police intervene in the
investigation. However, with respect to this claim,
the Court has already concluded that, as a matter of
law, the Durham Police had complete statutory
authority under North Carolina law, on campus and
off. See N.C. Gen. Stat. § 15A-402; § 160A-286. The
Jurisdictional Agreement between the Durham
Police and Duke Police could not reduce the Durham
Police Department’s statutory authority, nor could it
give the Duke Police any authority over the Durham
Police, even on campus or in other areas around
campus, regardless of whether the Duke Police had
“primary jurisdiction” of an area under the
Agreement. To the extent that Plaintiffs allege that
the Duke Police had authority over the Durham
Police or delegated authority to the Durham Police,
those are legal conclusions that are inconsistent with
Responses, Plaintiffs do not dispute this contention, and
Plaintiffs do not oppose the Motions to Dismiss as to Count 28
with respect to the individual Defendants in their individual
capacities. Therefore, the Motions to Dismiss will be granted on
that basis as well.
301a
North Carolina law and that the Court is not bound
to accept. Having considered Plaintiffs’ contentions,
the Court concludes that North Carolina courts
would not recognize a claim for negligence against a
University or its police force for failing to intervene
or interfere with a municipality’s exercise of its
statutory police powers. Therefore, the Motions to
Dismiss Count 29 will be granted, and the claims
asserted in Count 29 will be dismissed.
Count 30:
Negligence, asserted against Duke,
Steel, Brodhead, Lange, Trask,
Burness, Moneta, Dzau, Haltom,
Dawkins,
Wasiolek,
Bryan,
Drummond, Duke Police, Graves,
Dean, Humphries, Cooper, Garber,
Schwab, Fleming, Best, Smith,
Stotsenberg, Duke Health, Private
Diagnostic, Manly, Arico, and
Levicy
In Count 30, Plaintiffs assert a state common
law claim for negligence against Duke and all of the
Duke-related Defendants. As the basis for this claim,
Plaintiffs allege that Duke owed them “a duty of care
to warn and otherwise affirmatively act to protect
Plaintiffs from harm” by virtue of their “unique
relationships” as students and student-athletes.
(Second Am. Compl. ¶ 1302). Plaintiffs allege that a
special relationship of “mutual benefit” existed
because they were student-athletes, and that Duke
therefore required to “help and/or protect the
Plaintiffs.” (Second Am. Compl. ¶ 1302). Plaintiffs
allege that the named Defendants breached the duty
of care owed to Plaintiffs by “failing to act with
302a
respect to the known and foreseeable dangers,”
failing to advise Plaintiffs to seek qualified,
competent legal counsel, failing to provide a
competent supervisor to oversee the investigation
and intervene to prevent Gottlieb’s efforts, failing to
notify Plaintiffs’ parents of the accusations, failing to
safeguard e-mail accounts and other records, and
failing to correct false and misleading statements
made by Duke faculty and staff. (Second Am. Compl.
¶1303). Plaintiffs further allege that the individual
Defendants’ negligence was the product of Duke’s
negligent hiring, retention, supervision, and
training.
Under North Carolina law, a plaintiff states a
claim for negligence if he alleges sufficient facts to
establish “(1) that there has been a failure to
exercise proper care in the performance of some legal
duty which defendant owed to plaintiff under the
circumstances in which they were placed; and (2)
that such negligent breach of duty was a proximate
cause of the injury.” Hairston v. Alexander Tank &
Equip. Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564
(1984); see also Estate of Mullis by Dixon v. Monroe
Oil Co., 349 N.C. 196, 201, 505 S.E.2d 131, 135
(1998) (noting that a common law negligence claim
has four essential elements: “duty, breach of duty,
proximate cause, and damages”). As such,
“[a]ctionable negligence presupposes the existence of
a legal relationship between parties by which the
injured party is owed a duty by the other, and such
duty must be imposed by law.” Davidson v. Univ. of
N.C. at Chapel Hill, 142 N.C. App. 544, 553, 543
S.E.2d 920, 926 (2001) (internal quotations omitted).
“In cases involving omissions, negligence may arise
303a
where a ‘special relationship’ exists between the
parties.” Id. at 554, 543 S.E.2d at 926. In Davidson
v. University of North Carolina, the North Carolina
Court of Appeals recognized the existence of a
“special relationship” between the university and its
athletes. This “special relationship” imposed a duty
of care on the university related to that relationship,
in the Davidson case with respect to injuries suffered
by the athlete during practice as part of a schoolsponsored team. Id. at 557, 543 S.E.2d at 928.
However, the North Carolina Court of Appeals in
Davidson noted that “[o]ur holding should not be
interpreted as finding a special relationship to exist
between a university, college, or other secondary
educational institution, and every student attending
the school, or even every member of a student group,
club, intramural team, or organization. We agree
with the conclusion reached by other jurisdictions
addressing this issue that a university should not
generally be an insurer of its students’ safety, and
that, therefore, the student-university relationship,
standing alone, does not constitute a special
relationship giving rise to a duty of care.” Id. at 556,
543 S.E.2d at 928; Kleinknecht v. Gettysburg Coll.,
989 F.2d 1360, 1368 (3d Cir. 1993) (noting that a
college does not owe a general duty of care to its
students because “the modern American college is
not an insurer of the safety of its students” (internal
quotations omitted)).
Based on this authority, the Court concludes
that Duke was not in a “special relationship’” with
the lacrosse team members based on their status as
students, because under North Carolina law, the
student-university relationship “does not constitute
304a
a special relationship giving rise to a duty of care.”
In addition, although Duke was potentially in a
“special relationship” with lacrosse team members
related to their participation in lacrosse team events,
that “special relationship” would not extend outside
of the lacrosse team context. Thus, any “special
relationship” that may have existed in the lacrosse
team context did not transform Duke into an
“insurer of the safety” of team members in all other
facets of student life. In this case, the allegations
asserted in Count 30 are based on Duke’s alleged
failure to protect Plaintiffs from harm by failing to
intervene in a Durham Police investigation, failing
to notify Plaintiffs’ parents of the investigation,
failing to correct statements made by faculty
members and failing to safeguard Plaintiffs’ student
information. These allegations are outside of any
University-related lacrosse team function and do not
relate to any participation in University-sponsored
lacrosse team events. As such, the allegations are
outside the scope of any “special relationship” that
may have existed between team members and Duke
based on their status as lacrosse team members.
Therefore, the Court concludes that the claims
alleged in Count 30 are outside of any “special
relationship” that may have existed, and Duke did
not have a “special relationship” with lacrosse team
members as students generally that imposed upon
Duke a “duty of care to warn and otherwise
affirmatively act to protect Plaintiffs from harm” as
alleged in Count 30.
In addition, to the extent that Plaintiffs’
negligence claim is based on failure to provide
competent advice to Plaintiffs, the North Carolina
305a
Court of Appeals in Davidson recognized the
possibility of a negligence claim based on a
“voluntary undertaking” when the university
negligently failed to provide sufficient advice or
safety information prior to practice. See Davidson,
142 N.C. App. at 558-59, 543 S.E.2d at 929-30. In
that case, the court held that the university
“voluntarily undertook to advise and educate the
cheerleaders regarding safety,” and this “voluntary
undertaking” established a duty of care upon the
University to reasonably advise and educate the
squad members regarding safety. Id. at 558, 543
S.E.2d at 929. However, due to significant policy
concerns, courts have generally declined to recognize
a duty of care between a university advisor and a
student for academic advice or guidance. See
Hendricks v. Clemson Univ., 578 S.E.2d 711, 715
(S.C. 2003) (cited with approval in Ryan v. Univ. of
N.C. Hosps., 168 N.C. App. 729, 2005 WL 465554, at
*4 (2005) (table opinion)). For the same reasons,
courts have declined to recognize claims for
“educational malpractice” given the “policy concerns
with recognizing an actionable duty of care owed
from educators to students: (1) the lack of a
satisfactory standard of care by which to evaluate
educators, (2) the inherent uncertainties of the cause
and nature of damages, and (3) the potential for a
flood of litigation against already beleaguered
schools.” Id.; see also Thomas v. CharlotteMecklenburg Bd. of Educ., 3:06CV238-MU, 2006 WL
3257051, at *1 (W.D.N.C. Nov. 9, 2006) (“North
Carolina does not have an action for educational
malpractice.”); Gupta v. New Britain Gen. Hosp., 687
A.2d 111, 119 (Conn. 1996) (“[C]ourts have almost
universally held that claims of ‘educational
306a
malpractice’ are not cognizable.”); Key v. Coryell, 185
S.W.3d 98, 106 (Ark. 2004) (“[A] cause of action
seeking damages for acts of negligence in the
educational process is precluded by considerations of
public policy.”); Miller v. Loyola Univ. of New
Orleans, 829 So. 2d 1057, 1060 (La. Ct. App. 2002)
(“The great weight of authority generally holds that
the law recognizes no cause of action for ‘educational
malpractice’, either in tort or contract.”). Thus,
courts have concluded that “recognizing a duty
flowing from advisors to students is not required by
any precedent and would be unwise, considering the
great potential for embroiling schools in litigation
that such recognition would create.” Hendricks, 578
S.E.2d at 715; Brown v. Compton Unified Sch. Dist.,
80 Cal. Rptr. 2d 171, 172 (Cal. App. 1998) (“To hold
[advisors and administrators] to an actionable ‘duty
of care,’ in the discharge of their academic functions,
would expose them to the tort claims--real or
imagined--of disaffected students and parents in
countless
numbers”
and
“[t]he
ultimate
consequences, in terms of public time and money,
would
burden
them—and
society--beyond
calculation.”).
The cases that do recognize potential liability
based on a voluntary undertaking, within and
outside of the school setting, do so where physical
injury results from alleged negligence in the
undertaking. See, e.g., Davidson, 142 N.C. App. at
558-59, 543 S.E.2d at 929-30 (recognizing potential
negligence claim for physical injury suffered by
cheerleader during team practice based on voluntary
undertaking to advise and educate squad members
regarding safety); Hendricks, 578 S.E.2d at 715
307a
(noting that negligence claims based on voluntary
undertaking “have thus far been limited to
situations in which a party has voluntarily
undertaken to prevent physical harm, not economic
injury”). The Restatement (Second) of Torts § 323
sets out the basis for a negligence claim based on a
voluntary undertaking, and specifies that such a
claim exists “for physical harm resulting from [the]
failure to exercise reasonable care to perform [the]
undertaking.” Restatement (Second) of Torts § 323;
see also Furek v. Univ. of Delaware, 594 A.2d 506,
520 (Del. 1991) (holding that Restatement (Second)
of Torts § 323 provided the framework for
considering a university’s duty to a student based on
the “duty owed by one who assumes direct
responsibility for the safety of another through the
rendering of services in the area of protection”).
Based on this weight of authority, the Court
concludes
first
that
the
university-student
relationship alone does not impose an actionable
duty of care on administrators or advisors in the
discharge of their academic functions. In addition, to
the extent that Plaintiffs contend that a duty of care
nevertheless existed in the present case based on a
“voluntary undertaking,” this Court concludes that
under North Carolina law, as set out above, a
university may be held liable for negligence if it
makes itself responsible for a students’ physical
safety in a school-related activity, and if the
university’s alleged negligence contributed to a
physical injury to the student. However,
administrators and other advisors should be free to
communicate and advise students without creating
potential tort liability, even if that advice turns out
308a
to be misguided or inadequate. Thus, students
should not be entitled to recover on a negligence
claim against an administrator or university based
on the giving of poor advice. This is particularly true
where, as here, the alleged injury resulting from the
“voluntary undertaking” of the Defendants is
economic injury, rather than physical injury.
Therefore, the Court concludes that with respect to
the present claim in Count 30 for allegedly negligent
advice, North Carolina would not recognize a duty of
an advisor or administrator to a student that would
support a claim for negligence, particularly where no
physical harm results.
Therefore, the Court concludes that Plaintiffs
have failed to state a claim against the named
Defendants as alleged in Count 30, and the claims
asserted in Count 30 will be dismissed.
Count 31:
Negligence,
asserted
against
Levicy, Arico, Manly, Dzau, Private
Diagnostic, Duke Health, and Duke
In Count 31, Plaintiffs bring a state law claim
for negligence related to the allegations against
Arico and Levicy. As the basis for this claim,
Plaintiffs allege that Levicy and Arico owed
Plaintiffs a duty of care with respect to making
public statements and statements to law
enforcement regarding Mangum’s claims, and with
respect to the investigation of Mangum’s allegations
and the provision of forensic medical evidence.
Plaintiffs allege that Levicy and Arico breached their
duty of care, and that Levicy and Arico were acting
in the scope of their employment with Private
309a
Diagnostic, Duke Health or Duke. Plaintiffs further
allege that Private Diagnostic, Duke Health or Duke
breached its duty of care by assigning Levicy to
conduct Mangum’s examination and by failing to
meet the standard of care for the provision of sexual
assault examinations.81
As noted above, under North Carolina law, a
plaintiff states a claim for negligence if he alleges
sufficient facts to establish “(1) that there has been a
failure to exercise proper care in the performance of
some legal duty which defendant owed to plaintiff
under the circumstances in which they were placed;
and (2) that such negligent breach of duty was a
proximate cause of the injury.” Hairston v.
Alexander Tank & Equip. Co., 310 N.C. 227, 232,
311 S.E.2d 559, 564 (1984); see also Estate of Mullis
by Dixon v. Monroe Oil Co., 349 N.C. 196, 201, 505
S.E.2d 131, 135 (1998) (noting that a common law
negligence claim has four essential elements: “duty,
breach of duty, proximate cause, and damages”).
When a claim is asserted against a health care
provider by a third party who was not a patient of
the health care provider, the claim should be
analyzed to determine whether it is a claim for
medical malpractice or for ordinary negligence. See
Iodice v. United States, 289 F.3d 270, 275-77 (4th
Cir. 2002). Under North Carolina law, a “medical
malpractice action” is “a civil action for damages for
personal injury or death arising out of the furnishing
or failure to furnish professional services in the
Although Count 31 is asserted against Dzau, he is
not included in the factual allegations in Count 31. Similarly,
although Count 31 is asserted against Manly, there is no
allegation of any negligent conduct as to Defendant Manly.
81
310a
performance of medical, dental, or other health care
by a health care provider.” N.C. Gen. Stat. § 9021.11. In Iodice v. United States, the Fourth Circuit
considered claims asserted under North Carolina
law by plaintiffs who were injured and killed in an
automobile accident caused by another driver, Jones,
who was under the influence of alcohol and
narcotics. The plaintiffs brought suit against Jones’
health care provider, who had prescribed heavy
doses of narcotics despite Jones’s history of drug and
alcohol addiction. In reviewing the claims, the
Fourth Circuit held that to the extent the claims
were “attacking the quality of the medical care,” they
were appropriately viewed as medical malpractice
claims, and under North Carolina law, “‘the
relationship of physician to patient must be
established as a prerequisite to an actionable claim
for medical malpractice.’” Iodice, 289 F.3d at 275
(quoting Easter v. Lexington Mem’l Hosp., Inc., 303
N.C. 303, 305-06, 278 S.E.2d 253, 255 (1981)); see
also Estate of Waters v. Jarman, 144 N.C. App. 98,
101, 547 S.E.2d 142, 144 (2001) (noting that medical
malpractice claims asserted against a hospital
involve claims of negligence in the “clinical care”
provided to the patient); Fireman’s Mut. Ins. Co. v
High Point Sprinkler Co., 266 N.C. 134, 141, 146
S.E.2d 53, 60 (1966) (“The relation of physician and
patient imposes upon the physician a duty of care for
the protection of the patient from injury which he
does not owe to others.”).
Applying this rule in the present case, the
Court notes that Plaintiffs were not patients at Duke
Health and did not receive any treatment or
examination themselves. Instead, they are third
311a
parties attempting to assert a claim for the alleged
negligence of the named Defendants. Therefore, the
Court concludes that to the extent that Plaintiffs’
claim for negligence in the present case is based on
the quality of care provided to Mangum, including
any claim based on the clinical care, diagnosis, or
medical assessment by Defendants, such a claim is a
medical malpractice claim and must be dismissed,
because this type of claim may not be asserted by
individuals who were not patients of Defendants.
The Fourth Circuit in Iodice also considered
the alternative claims asserted by the plaintiffs in
that case for “ordinary negligence” against the
health care providers. The Fourth Circuit noted that
under North Carolina law, “when a negligence claim
against a health care provider does not ‘arise out’ of
the ‘furnishing’ of ‘professional services,’ it is not a
medical malpractice claim, but rather may be
brought as an ordinary negligence claim.” Iodice, 289
F.3d at 276 (citing Estate of Waters, 144 N.C. App.
at 103, 547 S.E.2d at 145). In such “ordinary
negligence” actions, courts apply the “reasonably
prudent person” standard, and “in such ordinary
negligence actions the ‘liability of the defendant
[health care provider] to the plaintiff depends on
whether the defendant owed a duty of care to the
plaintiff, which duty was violated, proximately
causing injury to the plaintiff.’” Id. at 276, 279
(quoting Blanton v. Moses H. Cone Mem’l Hosp. Inc.,
319 N.C. 372, 375, 354 S.E.2d 455, 457 (1987))
(concluding further that “North Carolina would
require a tight nexus” between the alleged
negligence and the harm to the victim, if it permitted
third party plaintiffs to recover at all). Such an
312a
“ordinary negligence” claim “presupposes the
existence of a legal relationship between the parties
by which the injured party is owed a duty which
either arises out of a contract or by operation of law.
If there is no duty, there can be no liability.” Prince
v. Wright, 141 N.C. App. 262, 266, 541 S.E.2d 191,
195 (2000) (internal quotations omitted). “‘[A] duty,
in negligence cases, may be defined as an obligation,
to which the law will give recognition and effect, to
conform to a particular standard of conduct toward
another.’” Peal by Peal v. Smith, 115 N.C. App. 225,
230, 444 S.E.2d 673, 677 (1994) (quoting W. Page
Keeton et al., The Law of Torts, § 53 (5th ed. 1984)).
“Such duty of care may be a specific duty owing to
the plaintiff by the defendant, or it may be a general
one owed by the defendant to the public, of which the
plaintiff is a part.” Paschall v. N.C. Dep’t of Corr., 88
N.C. App. 520, 524, 364 S.E.2d 144, 146 (1988)
(quoting Pinnix v. Toomey, 242 N.C. 358, 362, 87
S.E.2d 893, 897-98 (1955)). “The existence of a duty
is ‘entirely a question of law . . . and it must be
determined only by the court.’” Peal by Peal, 115
N.C. App. at 230, 444 S.E.2d at 677 (quoting W.
Page Keeton et al., The Law of Torts, § 37 (5th ed.
1984)).
In this case, Plaintiffs contend that they have
stated claims for ordinary negligence with respect to
Levicy’s statements to law enforcement, the
investigation of Mangum’s claims, and provision of
forensic evidence, apart from any medical care
provided to Mangum. However, even if the conduct
alleged as to Defendant Levicy did not comply with
professional standards or fell below a reasonable
standard of care, Plaintiffs can only bring a
313a
negligence claim for the alleged failure to meet the
standard of care if Levicy owed a duty of reasonable
care to the Plaintiffs. In the Second Amended
Complaint, Plaintiffs allege that Levicy owed them a
“duty to use due care with respect to public
statements and statements to law enforcement
concerning the investigation of Mangum’s claims
[and] . . . a duty to use due care with respect to their
involvement in the investigation of Mangum’s false
accusations, including the provision [of] forensic
medical evidence relating to the investigation.”
(Second Am. Compl. ¶ 1311-1312). However, the
Court finds that there is no basis to support the
contention that a sexual assault nurse examiner or a
hospital emergency department owes a duty to the
general public or to individuals who are members of
the public who may subsequently be targeted during
a police investigation. Plaintiffs have cited no North
Carolina or Fourth Circuit cases supporting such a
duty, and this Court concludes that North Carolina
public policy would not support imposing such
sweeping potential liability on health care
professionals for providing assessments and reports
to police officers.82 Indeed, the Fourth Circuit has
82 This public policy is illustrated in North Carolina
General Statute § 90-21.20(d), which specifically provides
immunity to hospital directors, administrators, physicians, and
other designated persons who participate in making a report to
police under that statute for certain wounds, injuries and
illnesses, unless the director, administrator, physician, or other
designated person is acting in bad faith. See N.C. Gen. Stat. §
90-21.20. Thus, North Carolina law would not recognize claims
for negligence related to participation in a report provided to
police under that statute. Although the parties have not raised
this statute in the present case, it provides further evidence
that North Carolina law would not recognize negligence claims
314a
rejected third party claims that would impose a duty
on a physician to third parties, where such a duty
could interfere with the physician’s primary duty to
the patient. Cf. Iodice, 289 F.3d at 276 (“‘[D]octors
should owe their duty to their patient and not to
anyone else so as not to compromise this primary
duty.’” (quoting Russell v. Adams, 125 N.C. App. 637,
640, 482 S.E.2d 30, 33 (1997) (internal quotation
omitted))). Plaintiffs have not asserted any factual
basis on which to conclude that a specific legal duty
arose between Levicy and Plaintiffs, and North
Carolina law would not support an extension of
liability to health care providers in these
circumstances. Therefore, the Court concludes that a
nurse or other medical professional does not owe a
duty of care to the general public or members of the
public who may subsequently be investigated by
police based on information provided to the police by
the medical professional.83 Thus, even if at least
some of the conduct alleged as to Defendant Levicy
fell below a reasonable standard of care, Plaintiffs
have failed to state a claim for negligence because
they have not asserted facts that would support the
contention that Defendants owed a duty of
reasonable care to them. Count 31, which is based
solely on a claim of negligent conduct, will therefore
be dismissed.
in these circumstances or impose a duty that would extend to
Plaintiffs for claims based on simple negligence.
A health care professional, like any other person,
may be liable for defamation if the elements of that tort are
established. However, Plaintiffs here have not asserted a claim
for defamation, and therefore the inquiry here is only whether
a duty exists that would support potential liability for
negligence in the circumstances alleged.
83
315a
Count 32:
Negligent
Hiring,
Retention,
Supervision,
Training
and
Discipline, asserted against Arico,
Manly, Private Diagnostic, Duke,
and Duke Health
In Count 32, Plaintiffs bring a state law claim
for negligence, alleging negligent hiring, retention,
supervision, training and discipline of Levicy. As the
basis for this claim, Plaintiffs allege that Arico,
Manly, Private Diagnostic, Duke, and Duke Health
owed Plaintiffs a duty of care with respect to the
hiring, training, supervision, discipline, and
retention of sexual assault examiners and other
personnel involved in the investigation of Mangum’s
claims and the preservation of records. Plaintiffs
further allege that Arico, Manly, Private Diagnostic,
Duke Health, or Duke negligently supervised Levicy
by failing to monitor her conduct or performance,
failing to provide her with proper training, and
ignoring evidence of Arico and Levicy’s misconduct
in making false statements to the public and to
investigators.
“North Carolina recognizes the existence of a
claim against an employer for negligence in
employing or retaining an employee whose wrongful
conduct injures another.” Hogan v. Forsyth Country
Club Co., 79 N.C. App. 483, 494, 340 S.E.2d 116, 123
(1986). This type of claim “becomes important in
cases where the act of the employee either was not,
or may not have been, within the scope of his
employment.” Id. at 495, 340 S.E.2d at 124.
“However, before the employer can be held liable,
plaintiff must prove that the incompetent employee
316a
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.
As the basis for a claim of negligent
supervision or retention, “Plaintiff must demonstrate
that [defendant’s] employees committed tortious
acts, of which [defendant] had actual or constructive
knowledge,” and as such, the underlying tortious
conduct is “an essential element of this claim.”
Kimes v. Lab. Corp. of Am., Inc., 313 F. Supp. 2d
555, 569 (M.D.N.C. 2004) (granting summary
judgment on negligent supervision claim after
underlying
emotional
distress
claims
were
dismissed); see also Guthrie v. Conroy, 152 N.C.
App. 15, 26, 567 S.E.2d 403, 411 (2002) (dismissing
claim against employer that was based on
ratification of employee’s behavior when the
underlying IIED claim was dismissed). In the
present case, the Court has concluded that many of
the claims against Levicy should be dismissed, and
therefore no negligent supervision claim can be
raised as to those dismissed claims. However, the
Court has also concluded that other claims are going
forward as to Defendant Levicy.84 Under North
Specifically, the Court has concluded that although
there is no underlying claim properly asserted as to Defendant
Levicy for negligence, Plaintiffs’ claim for obstruction of justice
against Levicy may proceed. There are also claims going
forward as to Defendant Levicy pursuant to § 1983, but the
parties have not addressed the extent to which a state
negligent supervision claim could arise based on underlying
conduct that involves a violation of § 1983, where the employee
has become a “state actor” by her own conduct but the employer
has not. Because other state court claims are proceeding on
84
317a
Carolina law, an employer may be held liable for the
tortious acts of its employees, based on either a
theory of (1) respondeat superior if the employee was
acting in the scope of his or her employment, or (2)
negligent supervision if, “prior to the [tortious] act,
the employer knew or had reason to know of the
employee’s incompetency” even if “the act of the
employee either was not, or may not have been,
within the scope of his employment” Hogan, 79 N.C.
App. at 495, 340 S.E.2d at 124. Thus, the negligent
supervision claim may be asserted as an alternative
to “respondeat superior” liability under state law.
Therefore, the Court will not dismiss the claim
asserted in Count 32 against Duke and Duke Health
for negligent supervision of Levicy, to the extent that
other underlying claims are proceeding in this case
as to Levicy.
However, a claim for negligent hiring,
retention, and supervision would be actionable only
against the employer, not the individual supervisors.
Cf. Foster v. Crandell, 181 N.C. App. 152, 170-71,
638 S.E.2d 526, 538-39 (2007) (noting that liability
for negligent hiring or retention would extend only to
an employer who employed an incompetent employee
either as an employee or independent contractor, not
to co-employees); Ostwalt v. Charlotte-Mecklenburg
Bd. of Educ., 614 F. Supp. 2d 603, 609 (W.D.N.C.
2008) (“North Carolina courts have determined that
no claim for negligent supervision lies when the
Defendant is not the employer of the individual who
which to base the negligent supervision claim in any event,
further resolution of this issue is reserved for subsequent
briefing at summary judgment.
318a
commits the tortious act.”).85 Therefore, this claim is
properly dismissed as to Arico and Manly.
As a result of these determinations, the
Motion to Dismiss will be granted in part and denied
in part, and the claim asserted in Count 32 for
negligent supervision will be dismissed as to
Defendants Arico, Manly and Private Diagnostic,86
but will go forward as to Duke and Duke Health to
the extent that other underlying claims are
proceeding in this case as to Defendant Levicy.
Count 33:
Negligent Infliction of Emotional
Distress, asserted against Levicy,
Arico, Manly, Private Diagnostic,
Duke Health, and Duke
In Count 33, Plaintiffs bring a state law claim
for negligent infliction of emotional distress against
85 North Carolina courts do recognize a physician’s
independent duty to patients of medical residents or interns
when the physician is directly responsible for supervising the
residents or interns. See Mozingo v. Pitt County Mem’l Hosp.,
Inc., 331 N.C. 182, 192, 415 S.E.2d 341, 347 (1992). However,
the facts alleged in the present case would not establish a basis
for liability under Mozingo, since this case does not involve a
claim by a patient, nor does it involve any recognized legal duty
to Plaintiffs on the part of any of the named Defendants, as
discussed supra in Count 31. Thus, to the extent that Plaintiffs
are attempting to allege other direct negligence by the named
Defendants, the Court concludes that the named Defendants
did not owe a legal duty to Plaintiffs, as discussed with respect
to the negligence claims asserted in Count 31.
Private Diagnostic is included as a Defendant only as
the employer of Manly. Since this claim is being dismissed
against Manly, it is also properly dismissed as to Private
Diagnostic.
86
319a
the named Defendants. As the basis for this claim,
Plaintiffs allege that Levicy, Arico, Manly, Private
Diagnostic, Duke Health, and Duke acted
individually and in concert to manufacture false
evidence and conceal exculpatory forensic medical
evidence, and that they violated guidelines and
regulations and departed from the professional
standard of care. Plaintiffs allege that as a result,
Plaintiffs “have suffered and continue to suffer from
diagnosable emotional and mental conditions
causing disabling emotional, mental, and physical
harm.” (Second Am. Compl. ¶ 1331).
As discussed above, in order to state a claim
for Negligent Infliction of Emotional Distress
(“NIED”) under North Carolina law, Plaintiffs must
allege a sufficient basis to support the contention
that they each suffered “severe emotional distress”
under North Carolina law, and that the “severe
emotional distress was the foreseeable and
proximate result” of Defendants’ alleged negligence.
McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496
S.E.2d 577, 583 (1998). As with a claim for
intentional infliction of emotional distress, “severe
emotional distress” requires an “emotional or mental
disorder . . . which may be generally recognized and
diagnosed by professionals trained to do so.” Id.
However, Plaintiffs have failed to include any
specific allegations of emotional or mental disorders
or severe and disabling emotional or mental
conditions suffered by any of the Plaintiffs, and the
Second Amended Complaint does not include any
specific identification of any particular Plaintiff’s
mental or emotional condition or the nature of their
emotional distress. Cf. Holleman v. Aiken, 193 N.C.
320a
App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v.
Westchester Acad., Inc., 170 F. Supp. 2d 580, 585
(M.D.N.C. 2001). Therefore, Plaintiffs’ claims for
negligent infliction of emotional distress in Count 33
will be dismissed.87
Count 34:
Negligence,
asserted
Meehan, Clark, and DSI
against
In Count 34, Plaintiffs assert a state law claim
for negligence against Meehan, Clark, and DSI. As
the basis for this claim, Plaintiffs allege that
Meehan, Clark, and DSI owed Plaintiffs a duty of
care with respect to DSI’s involvement in the police
investigation of Mangum’s claims, and that Clark,
Meehan, and DSI breached the duty to use due care
when they agreed to omit exculpatory test results
and then produced a report that misstated the
purported results of the DNA testing.
As noted above, under North Carolina law, a
plaintiff states a claim for negligence if he alleges
sufficient facts to establish “(1) that there has been a
failure to exercise proper care in the performance of
some legal duty which defendant owed to plaintiff
under the circumstances in which they were placed;
and (2) that such negligent breach of duty was a
proximate cause of the injury.” Hairston v.
Alexander Tank & Equip. Co., 310 N.C. 227, 232,
311 S.E.2d 559, 564 (1984); see also Estate of Mullis
by Dixon v. Monroe Oil Co., 349 N.C. 196, 201, 505
This claim is also subject to dismissal because, as
discussed in Count 31, Plaintiffs have not stated a negligence
claim against Levicy, Arico, Manly, Duke, or Duke Health
because those Defendants did not owe Plaintiffs a duty of care.
87
321a
S.E.2d 131, 135 (1998) (noting that a common law
negligence claim has four essential elements: “duty,
breach of duty, proximate cause, and damages”).
However, in the present case, Plaintiffs have
not identified any legally cognizable duty of care that
Clark, Meehan, and DSI would owe to the Plaintiffs.
According to the allegations in the Second Amended
Complaint, Clark, Meehan, and DSI were operating
pursuant to a request from Nifong or Durham
Officials. Therefore, while Clark, Meehan, and DSI
may have had an obligation to the City, that did not
create a duty to others who were not parties to the
agreement. North Carolina has adopted the rule
from the Restatement (First) of Contracts § 145, that
“‘A promisor bound to the United States or to a State
or municipality by contract to do an act or render a
service to some or all of the members of the public, is
subject to no duty under the contract to such
members to give compensation for the injurious
consequences of performing or attempting to perform
it, or of failing to do so, unless, (a) an intention is
manifested in the contract, as interpreted in the
light of the circumstances surrounding its formation,
that the promisor shall compensate members of the
public for such injurious consequences, or (b) the
promisor’s contract is with a municipality to render
services the nonperformance of which would subject
the municipality to a duty to pay damages to those
injured thereby.’” Matternes v. City of WinstonSalem, 286 N.C. 1, 14-15, 209 S.E.2d 481, 488-89
(1974) (adopting the rule from the Restatement
(First) of Contracts § 145 (1932)). There is no
allegation here to support the conclusion that the
agreement by Nifong or the City with DSI
322a
manifested an intent to compensate members of the
public or that nonperformance of the contract would
subject the City to damages. Cf. Walker v. City of
Durham, 158 N.C. App. 747, 582 S.E.2d 80, 2003 WL
21499222, at *2 (2003) (table opinion) (finding no
liability for City for negligent handling or
destruction of evidence or for failing to conduct DNA
tests). Therefore, the Court concludes that Clark,
Meehan, and DSI did not owe a duty of care to
Plaintiffs, and Plaintiffs cannot recover from Clark,
Meehan, or DSI for simple negligence.88 Therefore,
the Motions to Dismiss will be granted as to Count
34, and this claim will be dismissed.
Count 35:
Negligent
Supervision,
Training,
Discipline,
Retention,
asserted
Meehan, Clark, and DSI
Hiring,
and
against
In Count 35, Plaintiffs assert a state law claim
for negligence, alleging negligent supervision, hiring,
training, discipline and retention as to the named
Defendants. Specifically, Plaintiffs allege that Clark
and DSI negligently hired, supervised, and trained
Meehan, and that Clark, Meehan and DSI
negligently hired, supervised, retained, and trained
the DSI personnel who were assisting Meehan.
As discussed above, “North Carolina
recognizes the existence of a claim against an
employer for negligence in employing or retaining an
To the extent that Plaintiffs base their claim on
intentional misconduct involving falsification or fabrication of
evidence, those claims are considered as part of Plaintiffs’ claim
for obstruction of justice in Count 18.
88
323a
employee whose wrongful conduct injures another.”
Hogan v. Forsyth Country Club Co., 79 N.C. App.
483, 494, 340 S.E.2d 116, 123 (1986). This type of
claim “becomes important in cases where the act of
the employee either was not, or may not have been,
within the scope of his employment.” Id. at 495, 340
S.E.2d at 124. “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.
In the present case, the Court has concluded
that many of the claims against Clark and Meehan
should be dismissed, and therefore no negligent
supervision claim can be raised as to those dismissed
claims. However, the Court has also concluded that
the claims for obstruction of justice are going
forward as to Defendants Clark and Meehan. The
claim for obstruction of justice is also going forward
against DSI on the basis of respondeat superior
liability. As discussed above, a negligent supervision
claim may be asserted as an alternative to
respondeat superior liability under state law, and
applies even if the employee was not acting within
the scope of his employment, if the employer knew or
had reason to know of the employee’s incompetency.
Id. Therefore, the Court will not dismiss the claim
asserted in Count 35 for negligent supervision to the
extent that it is asserted against DSI for negligent
supervision of Clark and Meehan.
However, a claim for negligent hiring,
retention, and supervision would be actionable only
324a
against the employer, not the individual supervisors.
Cf. Foster v. Crandell, 181 N.C. App. 152, 170-71,
638 S.E.2d 526, 538-39 (2007) (noting that liability
for negligent hiring or retention would extend only to
an employer who employed an incompetent employee
either as an employee or independent contractor, not
to co-employees); Ostwalt v. Charlotte-Mecklenburg
Bd. of Educ., 614 F. Supp. 2d 603, 609 (W.D.N.C.
2008) (“North Carolina courts have determined that
no claim for negligent supervision lies when the
Defendant is not the employer of the individual who
commits the tortious act.”). Therefore, this claim is
properly dismissed as to Clark and Meehan.
Therefore, the Motions to Dismiss Count 35 will be
granted as to Defendants Clark and Meehan
individually, and those claims will be dismissed.
However, the Motion to Dismiss Count 35 will be
denied as to DSI, their employer, and that claim will
go forward at this time.
Count 36:
Negligent Infliction of Emotional
Distress, asserted against Clark,
Meehan, and DSI
In Count 36, Plaintiffs assert a state law claim
for negligent infliction of emotional distress against
Clark, Meehan, and DSI. As the basis for this claim,
Plaintiffs allege that Clark, Meehan, and DSI acted
individually and in concert to manufacture false and
misleading DNA reports that subjected Plaintiffs to
public condemnation and outrage. Plaintiffs allege
that as a result, Plaintiffs “have suffered and
continue to suffer from diagnosable emotional and
mental conditions causing disabling emotional,
325a
mental, and physical harm.” (Second Am. Compl.
¶ 1353).
As discussed above, in order to state a claim
for Negligent Infliction of Emotional Distress
(“NIED”) under North Carolina law, Plaintiffs must
allege a sufficient basis to support the contention
that they each suffered “severe emotional distress”
under North Carolina law, and that the “severe
emotional distress was the foreseeable and
proximate result” of Defendants’ alleged negligence.
McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496
S.E.2d 577, 583 (1998). As with a claim for
intentional infliction of emotional distress, “severe
emotional distress” requires an “emotional or mental
disorder . . . which may be generally recognized and
diagnosed by professionals trained to do so.” Id.
However, Plaintiffs have failed to include any
specific allegations of emotional or mental disorders
or severe and disabling emotional or mental
conditions suffered by any of the Plaintiffs, and the
Second Amended Complaint does not include any
specific identification of any particular Plaintiff’s
mental or emotional condition or the nature of their
emotional distress. Cf. Holleman v. Aiken, 193 N.C.
App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v.
Westchester Acad., Inc., 170 F. Supp. 2d 580, 585
(M.D.N.C. 2001). Therefore, the Motions to Dismiss
will be granted as to Count 36, and Plaintiffs’ claims
for negligent infliction of emotional distress in Count
36 will be dismissed.89
Moreover, the Court notes that, as discussed in Count
34, Plaintiffs cannot state a negligence claim against Clark,
Meehan, or DSI in any event.
89
326a
Count 37:
Negligence, asserted against Duke,
Best, Smith, and Stotsenberg90
In Count 37, Plaintiffs assert a state law claim
for negligence against Duke and against Duke Police
Officers Best, Smith, and Stotsenberg. As the basis
for this claim, Plaintiffs allege that the Duke Police
Officers owed Plaintiffs a duty of care with respect to
the investigation of Mangum’s claims, and breached
that duty of care by participating in the fabrication
of witness statements.
In considering these claims, the Court notes
that the North Carolina legislature, in authorizing
Duke to enter into agreements with the City to
extend the Duke Police Department’s jurisdiction,
specifically provided that Duke Police officers would
enjoy the same “powers, rights, privileges, and
immunities” as municipal law enforcement officers.
See 2003 N.C. Sess. Laws 329 (local amendment to
North Carolina General Statute § 116-40.5(b)); see
also State v. Ferebee, 177 N.C. App. 785, 788, 630
S.E.2d 460, 462 (2006) (holding that Duke Police
officers are “public officers” under state law).
Therefore, the Duke Police officers sued individually
would be protected by the state law immunities
applicable to Durham Police officers.
Plaintiffs also assert this claim against “Duke Police
Officers Mazurek, Day, Eason, and Falcon, solely in the official
capacities with respect to Duke University.” However,
Mazurek, Day, Eason, and Falcon are not named as Defendants
in this case. Moreover, in a state tort action, respondeat
superior liability is based on whether the alleged torts of an
employee were committed within the course and scope of
employment.
90
327a
With respect to the negligence claims asserted
against Duke, as discussed at length above, a
negligence claim “presupposes the existence of a
legal relationship between the parties by which the
injured party is owed a duty which either arises out
of a contract or by operation of law. If there is no
duty, there can be no liability.” Prince v. Wright, 141
N.C. App. 262, 266, 541 S.E.2d 191, 195 (2000)
(internal quotations omitted). The existence of a
campus police department does not create a duty on
the part of the university to prevent harm to its
students or otherwise affirmatively act to protect the
students. Thus, Plaintiffs have failed to sufficiently
allege any legal duty that the Duke Police officers
owed to them in conducting the investigation, or any
obligation to conduct an investigation at all.
Therefore, the Court concludes that Plaintiffs cannot
state a claim against Duke for simple negligence in
conducting, or failing to conduct, an investigation.
Therefore, the Motion to Dismiss Count 37 will be
granted and the claims asserted in Count 37 will be
dismissed.
Count 38:
Negligent Supervision, asserted
against Brodhead, Trask, Dawkins,
Graves, Dean, Humphries, Cooper,
Garber, Schwab, Fleming, Best, and
Duke
In Count 38, Plaintiffs assert a state law
negligence claim, asserting a claim for negligent
supervision against the Duke Police Supervisors
named as Defendants in this Count. As the basis for
this claim, Plaintiffs allege that the Duke Police
Supervisors owed Plaintiffs a duty to use due care
328a
with respect to their involvement in the
investigation of Mangum’s allegations. Plaintiffs
allege that the Duke Police Supervisors negligently
hired, supervised, retained, and trained the “Day
Chain of Command” by failing to “outline the proper
procedures with respect to the preparation and
issuance of police reports of their observations and
personal knowledge obtained in the course of their
duties on behalf of the Duke Police Department with
respect to the conduct of a criminal investigation and
the proper chain of command for investigations of
criminal activity reported in their jurisdiction.”
(Second Am. Compl. ¶ 1363). Plaintiffs also allege
that the Duke Police Supervisors negligently hired,
supervised, retained, and trained DSI personnel and
others who participated in or assisted in the criminal
investigation of Mangum’s accusations.
However, to the extent that this claim is based
on the contention that the Supervisors “owed
Plaintiffs a duty to use due care with respect to their
involvement in the investigation of Mangum’s
allegations,” the Court has found, as discussed at
length above, that Duke did not have any duty to
Plaintiffs to conduct an investigation at all, or to
meet a particular standard of care in conducting the
investigation to the extent they chose to do so. In
addition, to the extent that this claim is based on
“negligent supervision” of an employee, before an
employer can be held liable on a claim for negligent
supervision, the, 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.” Hogan v. Forsyth
329a
Country Club Co., 79 N.C. App. 483, 495, 340 S.E.2d
116, 124 (1986). However, all of the allegations in
Count 38 relate to negligent supervision and
training with respect to proper preparation of police
reports or following the proper “chain of command,”
and there are no underlying torts in this case that
state a claim against Duke Police employees for
failing to properly file police reports or follow a
proper chain of command. As discussed above, Duke
Police did not owe Plaintiffs a duty to file police
reports or follow a certain chain of command, and
therefore Plaintiffs cannot state a claim for
negligence on this basis.
Finally, to the extent that this claim is based
on negligent supervision of DSI, the Court finds that
Plaintiffs cannot state a claim against Duke for
“negligent supervision” of DSI or its employees.
Duke had no obligation to supervise DSI or its
employees, and a claim for negligent supervision or
retention is a claim against an employer, not a third
party. Cf. Foster v. Crandell, 181 N.C. App. 152, 17071, 638 S.E.2d 526, 538-39 (2007) (noting that
liability for negligent hiring or retention would
extend only to an employer who employed an
incompetent employee either as an employee or
independent contractor, not to co-employees).
For all of these reasons, the Court concludes
that, Defendants’ Motion to Dismiss as to Count 38
will be granted, and this claim will be dismissed.
330a
Count 39:
Negligent Infliction of Emotional
Distress, asserted against Steel,
Brodhead, Lange, Trask, Burness,
Moneta, Dzau, Haltom, Dawkins,
Graves, Dean, Humphries, Cooper,
Fleming, Smith, Best, and Duke
In Count 39, Plaintiffs assert a state law claim
for negligent infliction of emotional distress. This
claim is based on Plaintiffs’ contention that the
named Defendants and other Duke Police officers,
acting individually and in concert, manufactured
false and misleading witness statements and
concealed their personal knowledge of evidence of
Plaintiffs’ innocence. Plaintiffs allege that Duke
Police officers subjected Plaintiffs to the threat and
fear of prosecution and subjected them to public
condemnation. Plaintiffs allege that as a result,
Plaintiffs “have suffered and continue to suffer from
diagnosable emotional and mental conditions
causing disabling emotional, mental, and physical
harm.” (Second Am. Compl. ¶ 1371).
As discussed above, in order to state a claim
for Negligent Infliction of Emotional Distress
(“NIED”) under North Carolina law, Plaintiffs must
allege a sufficient basis to support the contention
that they each suffered “severe emotional distress”
under North Carolina law, and that the “severe
emotional distress was the foreseeable and
proximate result” of Defendants’ alleged negligence.
McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496
S.E.2d 577, 583 (1998). As with a claim for
intentional infliction of emotional distress, “severe
emotional distress” requires an “emotional or mental
331a
disorder . . . which may be generally recognized and
diagnosed by professionals trained to do so.” Id.
However, Plaintiffs have failed to include any
specific allegations of emotional or mental disorders
or severe and disabling emotional or mental
conditions suffered by any of the Plaintiffs, and the
Second Amended Complaint does not include any
specific identification of any particular Plaintiff’s
mental or emotional condition or the nature of their
emotional distress. Cf. Holleman v. Aiken, 193 N.C.
App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v.
Westchester Acad., Inc., 170 F. Supp. 2d 580, 585
(M.D.N.C. 2001). Therefore, Plaintiffs’ claims for
negligent infliction of emotional distress in Count 39
will be dismissed.91
Count 40:
Negligent Entrustment, asserted
against
Duke,
Duke
Police,
Brodhead, Trask, Dawkins, Graves,
Dean, Humphries, Cooper, Garber,
Schwab, Fleming, and Best
In Count 40, Plaintiffs assert a state law
negligence claim, alleging “negligent entrustment”
against Duke, the Duke Police, and the Duke Police
Supervisors named as Defendants in this Count. As
the basis for this claim, Plaintiffs allege that Duke
and the Duke Police Department “negligently
entrusted the Duke Police Department’s primary
investigative and law enforcement authority and its
official policymaking authority with respect to the
Investigation of Mangum’s allegations to Nifong,
Moreover, the Court notes that, as discussed in
Counts 30 and 37, Plaintiffs cannot state a negligence claim
against Duke in any event.
91
332a
Gottlieb, Himan, Clayton, Addison, Michael, and the
Durham Police.” (Second Am. Compl. ¶ 1374).
Plaintiffs allege that Duke and the Duke Police had
a duty to exercise due care in any delegation of their
primary jurisdictional responsibility and authority
with respect to the investigation of Mangum’s
claims, and that they breached that duty of care by
delegating that authority to the City, even though
they knew or should have known of abuses by
Nifong, Gottlieb, Himan, Clayton, Addison, Michael,
and the Durham Police.
Under North Carolina law, “[n]egligent
entrustment is established when the owner of an
automobile ‘entrusts its operation to a person whom
he knows, or by the exercise of due care should have
known, to be an incompetent or reckless driver[,]’
who is ‘likely to cause injury to others in its use[.]’
Based on his own negligence, the owner is ‘liable for
any resulting injury or damage proximately caused
by the borrower’s negligence.’” See Tart v. Martin,
353 N.C. 252, 254, 540 S.E.2d 332, 334 (2000)
(citations omitted). These claims have been extended
to include negligent entrustment of a firearm. See,
e.g., Lane v. Chatham, 251 N.C. 400, 405, 111 S.E.2d
598, 603 (1959). Thus, claims for negligent
entrustment arise against an owner of a firearm or
an automobile who negligently permitted a third
party to use or have the firearm or automobile.
Based on this case law, there is simply no
legal basis for a claim of “negligent entrustment” of
an investigation under North Carolina law.
Moreover, as discussed with respect to Count 29, the
Court has already concluded that, as a matter of law,
333a
the Durham Police had complete statutory authority
under North Carolina law, on campus and off. See
N.C. Gen. Stat. § 15A-402; § 160A-286. The
Jurisdictional Agreement between the Durham
Police and Duke Police could not reduce the Durham
Police Department’s statutory authority, nor could it
give the Duke Police any authority over the Durham
Police, even on campus or in other areas around
campus, regardless of whether the Duke Police had
“primary jurisdiction” of an area under the
Agreement. To the extent that Plaintiffs allege that
the Duke Police had authority over the Durham
Police or that the Duke Police delegated authority to
Nifong or to the Durham Police, those are legal
conclusions that are inconsistent with North
Carolina law and that the Court is not bound to
accept.
Having considered Plaintiffs’ contentions, the
Court concludes that North Carolina courts would
not recognize a claim for negligent entrustment
against a University or its police force for failing to
intervene or interfere with a municipality’s exercise
of its statutory police powers. Therefore, Defendants’
Motion to Dismiss as to Count 40 will be granted,
and the claims asserted in Count 40 will be
dismissed.
Count 41:
Violations of Article I and Article
IX
of
the
North
Carolina
Constitution
and
Conspiracy,
asserted against the City and Duke
Finally, in Count 41, Plaintiffs bring a claim
under Article I and Article IX of the North Carolina
334a
Constitution, alleging that all of the foregoing acts
and conduct by employees of the Durham Police
Department
and
Duke
Police
Department
constituted willful abuses of police powers and
deprived Plaintiffs of their rights under the state
constitution. Plaintiffs note that they “plead this
direct cause of action under the North Carolina
Constitution in the alternative to Plaintiffs’ statelaw claims should those causes of action be barred in
whole or part or otherwise fail to provide a complete
and adequate state law remedy for the wrongs
committed by the Defendants and their agents and
employees.” (Second Am. Compl. ¶ 1385).
To the extent that this claim is asserted
against the City, the Court notes that there are
several claims going forward in this case against the
City, including state law claims for obstruction of
justice, negligence, and negligent supervision with
respect to Counts 18, 25, and 26 that will not be
dismissed on a Motion to Dismiss. However, the City
has filed a separate Motion for Summary Judgment
[Doc. #86], contending that the state law claims are
barred by the doctrine of governmental immunity. In
this regard, the City enjoys governmental immunity
on these state law claims except to the extent that
its immunity has been waived by the purchase of
insurance. See Mullins v. Friend, 116 N.C. App. 676,
680, 449 S.E.2d 227, 229 (1994); N.C. Gen. Stat.
§ 160A-485(a). Plaintiffs have alleged that the City
waived its governmental immunity by “procuring a
liability insurance policy or participating in a
municipal risk-pooling scheme.” (Second Am.
Compl.¶ 48). However, in the Motion for Summary
Judgment, the City contends that it has not
335a
purchased insurance that would waive its immunity
for the state law claims asserted by Plaintiffs.
Specifically, the City contends that while it has
purchased insurance coverage, those policies do not
extend coverage to claims against the City for which
a defense of governmental immunity would
otherwise be available.
After the Motion for Summary Judgment was
filed, the North Carolina Supreme Court issued a
decision in Craig v. New Hanover County Bd. of
Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009),
concluding that a claim may potentially be asserted
under the state constitution if other state law claims
would be barred by governmental immunity.
Therefore, in response, Plaintiffs subsequently
added the claim in Count 41 as an alternative claim,
should it ultimately be determined that the state law
claims would otherwise be barred by governmental
immunity.
In their renewed Motions to Dismiss,
Defendants contend that Count 41 should be
dismissed because Plaintiffs cannot state a claim
under the North Carolina constitution. Defendants
contend that Plaintiffs have not alleged any
constitutional violation and that Plaintiffs have
other “adequate remedies” at state law. Under North
Carolina law, a claim under the state constitution
may only be asserted when there is no other
adequate remedy under state law. See id.; see also
Corum v. Univ. of N.C., 330 N.C. 761, 782-86 413
S.E.2d 276, 289-92 (1992). Thus, to assert a direct
constitutional claim, “a plaintiff must allege that no
adequate state remedy exists to provide relief for the
336a
injury.” Copper v. Denlinger, 363 N.C. 784, 788, 688
S.E.2d 426, 428 (2010). “An adequate state remedy
exists if, assuming the plaintiff’s claim is successful,
the remedy would compensate the plaintiff for the
same injury alleged in the direct constitutional
claim.” Estate of Fennell v. Stephenson, 137 N.C.
App. 430, 437, 528 S.E.2d 911, 915-16 (2000), rev’d
in part on other grounds, 354 N.C. 327, 554 S.E.2d
629 (2001). Moreover, an adequate remedy is one
that “provide[s] the possibility of relief under the
circumstances.” Craig, 363 N.C. at 340, 678 S.E.2d
at 355. Thus, “to be considered adequate in
redressing a constitutional wrong, a plaintiff must
have at least the opportunity to enter the courthouse
doors and present his claim.” Id. at 339-40, 678
S.E.2d at 355.
In Craig, the Supreme Court held that where
governmental immunity bars a common law
negligence claim, that negligence claim does not
provide an adequate remedy at state law. Id. The
court further held that when a tort remedy is barred
by governmental immunity, a “plaintiff may move
forward in the alternative, bringing his colorable
claims directly under [the] State Constitution based
on the same facts that formed the basis for his
common law negligence claim.” Id. at 340, 678
S.E.2d at 355. The court noted that the “holding does
not predetermine the likelihood that plaintiff will
win other pretrial motions, defeat affirmative
defenses, or ultimately succeed on the merits of his
case. Rather, it simply ensures that an adequate
remedy must provide the possibility of relief under
the circumstances.” Id. Thus, the state supreme
court has concluded that where a negligence claim is
337a
asserted against the municipality but no recovery is
available due to the doctrine of governmental
immunity, then no adequate state remedy exists.
In the present case, unresolved questions
remain with respect to whether there are other
adequate remedies under state law, particularly in
light of the City’s assertion of governmental
immunity. Therefore, to the extent that Defendants
contend that Count 41 should be dismissed because
there are alternative remedies, the Court will deny
the Motion to Dismiss as to Count 41, and allow it to
go forward as a potential alternative claim should
the City ultimately prevail on its governmental
immunity defense.
Moreover, since these claims are going
forward on an alternative basis, the Court concludes
that there is no need to resolve the City’s
governmental immunity defense on a preliminary
summary judgment determination, and that
determination is better made after an opportunity
for discovery and consideration with all of the
remaining claims and defenses together. This
approach is particularly appropriate here given that
claims are proceeding against the City in any event
under 42 U.S.C. § 1983. Therefore, the Motion to
Dismiss as to Count 41 will be denied, and the City’s
Motion for Summary Judgment [Doc. #86] raising
the governmental immunity defense will be denied
at this time without prejudice to the City raising the
defense as part of a comprehensive Motion for
Summary Judgment at the close of discovery.
338a
However, to the extent that this claim is
asserted against Duke, the Court concludes that
Plaintiffs cannot assert this “alternative” claim
against Duke under the Supreme Court’s decision in
Craig because Duke has not claimed a governmental
immunity defense. Moreover, the Court concludes
that Plaintiffs cannot state a claim against Duke for
“abuses of police power” and deprivations of right
under the state constitution in any event because
individual rights under the state constitution are
only protected against encroachment by the
government. See Craig, 363 N.C. at 339, 678 S.E.2d
at 355. In this regard, the North Carolina Supreme
Court has held that “[t]he [state] Constitution only
recognizes and secures an individual’s rights vis-avis ‘We, the people of the State of North Carolina,’
not individual members of that body politic. Of
course, the State may only act through its duly
elected and appointed officials. Consequently, it is
the state officials, acting in their official capacities,
that are obligated to conduct themselves in
accordance with the Constitution. Therefore,
plaintiff may assert his freedom of speech right only
against state officials, sued in their official capacity.”
Corum, 330 N.C. at 788, 413 S.E.2d at 293. As
discussed at length above, the Court has already
determined that Duke was not a “state actor” acting
“under color of state law” for purposes of the § 1983
claims under the U.S. Constitution, and for the same
reasons the Court likewise concludes that Duke is
not liable for alleged violations of the state
constitution. Therefore, Count 41 will be dismissed
as to Duke.
339a
For the reasons discussed, the Motion to
Dismiss Count 41 will be granted as to Duke, and
the claim asserted against Duke will be dismissed.
However, the Motion to Dismiss Count 41 will be
denied as to the City, and the claim against the City
will go forward at this time as a potential alternative
claim should the City ultimately prevail on its
governmental immunity defense. In addition, the
Court concludes that, based on the foregoing
analysis, there is no need to resolve the City’s
governmental immunity defense on a preliminary
summary judgment determination, and therefore,
the City’s Motion for Summary Judgment [Doc. #86]
raising the governmental immunity defense will be
denied at this time without prejudice to the City
raising the defense as part of a comprehensive
Motion for Summary Judgment at the close of
discovery.
IV.
CONCLUSION
Having undertaken this comprehensive
review of the 41 claims asserted in this case against
the various 50 Defendants, the Court concludes that
the Motions to Dismiss will be granted in part and
denied in part as set out herein. In summary, Counts
1, 2, and 5 will go forward under 42 U.S.C. § 1983 for
alleged constitutional violations. The claims asserted
in Counts 1 and 2 are asserted pursuant to 42 U.S.C.
§ 1983 for violation of the Fourth and Fourteenth
Amendment for unlawful searches and seizures
without probable cause based on the NonTestimonial Order and Search Warrant that were
allegedly obtained through the intentional or
reckless use of false or misleading evidence or
340a
material omissions designed to mislead the
magistrate judge. The claims asserted in Count 5 are
asserted pursuant to 42 U.S.C. § 1983 for violation of
the Fourteenth Amendment based on alleged false
and stigmatizing statements by the government in
connection with the alleged Fourth Amendment
violations in Counts 1 and 2. With respect to these
claims, to the extent that Defendants contend that
there was no constitutional violation because
probable cause would still exist to support the
searches and seizure, even if the allegedly false and
misleading statements are removed and the alleged
material omissions are included, the Court has
concluded that this contention cannot be resolved on
a motion to dismiss in light of the Plaintiffs’
allegations here. Such an inquiry is fact-intensive in
the present case given the number of and nature of
the alleged misrepresentations and omissions.
Therefore, the Court concludes that this issue is
more appropriately considered on an evidentiary
record after discovery.
These claims for the alleged constitutional
violations in Counts 1 and 2 are going forward as to
Defendants Nifong92, Gottlieb, Himan, and Levicy
92 The Court again notes that District Attorney Nifong
previously filed a Notice of Bankruptcy in the case of Evans v.
City of Durham, 1:07CV739. Although the Evans case was
stayed against Nifong during his Bankruptcy, it was reopened
after the Bankruptcy Court determined that the claims against
Nifong in the Evans case were “personal injury tort” claims
that must be considered in this Court rather than in the
Bankruptcy Court. Nifong has not filed a Notice of Bankruptcy,
a Motion to Dismiss, or any other response in the present case,
and the parties have not addressed the status of Nifong as a
Defendant, other than with respect to Plaintiffs’ contentions
that the City should be held responsible for Nifong’s actions.
341a
based on allegations that they were directly involved
in the alleged Fourth Amendment violations, and as
to Defendant Smith in Count 2 on the basis of
bystander liability.93 The claims in Count 5 are going
forward as to Defendants Nifong, Gottlieb, Addison,
Hodge, and Wilson. The claims in Counts 1, 2, and 5
are also going forward as to the City based on the
additional allegations contained in Counts 12 and
14, setting out claims for municipal liability.
However, to the extent that there are claims
proceeding against the City, Plaintiffs may not
recover punitive damages from the City. See City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271,
101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981).
Therefore, the claim for punitive damages against
the City will be dismissed. Finally, the Court will
allow the § 1983 claims in Counts 1, 2, and 5 to go
forward against certain of the Durham Police
“supervisors,” specifically, Baker, Chalmers, Hodge,
Russ, Council, Lamb, and Ripberger, based on
Plaintiffs’ allegations as discussed with respect to
The Court has addressed that issue and other common legal
issues in this Memorandum Opinion, but has not addressed
issues specific only to Nifong given this procedural posture. If
Plaintiffs intend to proceed against Nifong individually in light
of the Court’s determinations herein, Plaintiffs should file a
Notice in this case addressing Nifong’s status as a Defendant
and addressing the impact of any remaining bankruptcy issues.
As to both Defendant Levicy and Defendant Smith,
the Court concludes that Plaintiffs have alleged that they
became “state actors” by allegedly joining with Nifong, Gottlieb,
and Himan to commit the alleged constitutional violations,
knowing that the NTO and search warrant were not supported
by probable cause and were based on false and misleading
assertions and material omissions. As with all of these claims,
it will be Plaintiffs’ burden to present proof of these allegations.
93
342a
Count 13. However, at summary judgment, it will be
Plaintiffs’ burden to “pinpoint the persons in the
decision-making chain whose deliberate indifference
permitted the constitutional abuses to continue
unchecked,” and the Court will scrutinize evidence
regarding each Defendant’s direct, individual
involvement, and evidence regarding their individual
intent, in order to determine whether any of them is
potentially liable under § 1983 for their own conduct
with respect to the alleged constitutional violations
that are proceeding in this case.94 The Court notes
that the § 1983 claims are not going forward as to
Defendant Duke, because the Court finds that
Plaintiffs have failed to allege a sufficient basis to
support the contention that Duke was a “state
actor.”
The remaining claims asserted under 42
U.S.C. § 1983 and 42 U.S.C. § 1985 and § 1986,
including all of the claims in Counts 3, 4, 6, 7, 8, 9,
10, 11, 15, 16, and 17 do not state plausible, legally
viable claims, and will be dismissed.
With respect to the state law claims, the Court
concludes that with respect to Count 18, Plaintiffs
have stated a state law claim for obstruction of
justice against Defendants Nifong, Gottlieb, Himan,
Wilson, Clark, Lamb, Meehan, Levicy, Steel,
Brodhead, Dzau, and Burness, with potential
respondeat superior liability against the City, DSI,
Duke, and Duke Health. As an alternative to
In addition, special attention should be given during
the discovery process to ensure that these Supervisors are not
unduly burdened, in light of the potential qualified immunity
defense and the protections it affords.
94
343a
respondeat superior under state law, Plaintiffs have
also stated a claim for negligent supervision against
Duke Health and Duke in Count 32 and against DSI
in Count 35. In addition, Plaintiffs have stated a
claim in Count 21 against Duke for breach of
contract, but limited only to the allegation that Duke
imposed disciplinary measures against Plaintiffs,
specifically suspension, without providing them the
process that was promised. Plaintiffs have also
stated a claim in Count 24 for fraud against
Defendants Smith, Graves, Dean, Drummond, and
Duke, based on allegations that Drummond sent
letters to Plaintiffs informing them that Duke had
received a subpoena relating to Plaintiffs’ Duke Card
information, and fraudulently misrepresented that
Plaintiffs’ Duke Card information had not previously
been provided to Durham Police.
Finally, with respect to the state law claims
against the City in Counts 18, 25, and 26, and the
state constitutional claim asserted in Count 41, the
Court concludes that these claims, and the
governmental immunity defense raised in the City’s
Motion for Summary Judgment [Doc. #86], are
intertwined claims, some of which are pled in the
alternative, that must be resolved at summary
judgment after an opportunity for discovery.95
However, Plaintiffs have failed to state a
claim with respect to their remaining state law
As with the § 1983 claims, Plaintiffs may not recover
punitive damages against the City on these state claims. See
Efird v. Riley, 342 F. Supp. 2d 413, 430 (M.D.N.C. 2004) (citing
Long v. City of Charlotte, 306 N.C. 187, 208, 293 S.E.2d 101,
115 (1982)).
95
344a
claims, including all of the claims asserted in Counts
19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38,
39, and 40. Therefore, all of the claims asserted in
those Counts will be dismissed. Based on this
determination, the Court notes that claims are going
forward as to Defendant Nifong in Counts 1, 2, 5,
and 18; against Defendant Gottlieb in Counts 1, 2, 5,
and 18; against Defendant Himan in Counts 1, 2,
and 18; against Defendant Levicy in Counts 1, 2, and
18; against Defendant Smith in Counts 2 and 24;
against Defendant Addison in Count 5; against
Defendant Wilson in Counts 5 and 18; against the
City in Counts 1, 2, and 5 (based on the allegations
in Counts 12 and 14), as well as in Counts 18, 25, 26,
and 41; against Defendants Hodge, Baker,
Chalmers, Russ, Council, Lamb, and Ripberger in
Counts 1, 2, 5, and 13, plus Count 18 as to
Defendant Lamb; against Defendants Clark,
Meehan, and DSI in Count 18, plus Count 35 against
Defendant DSI; against Defendants Steel, Brodhead,
Dzau and Burness in Count 18; against Defendants
Graves, Dean, and Drummond in Count 24; against
Defendant Duke Health in Counts 18 and 32; and
against Defendant Duke in Counts 18, 21,96 24, and
32. All remaining claims are dismissed, including all
of the claims asserted in Counts 3, 4, 6, 7, 8, 9, 10,
11, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 31, 33,
34, 36, 37, 38, 39, and 40, and all of the claims
asserted against Defendants Humphries, Cooper,
Garber, Schwab, Fleming, Best, Stotsenberg, Lange,
Trask, Moneta, Haltom, Dawkins, Wasiolek, Bryan,
Private Diagnostic, Manly, Arico, Mihaich, Evans,
The Court notes that this breach of contract claim is
limited as set out in Count 21.
96
345a
Soukup, Michael, Clayton, and the Duke Police
Department.
Having undertaken this comprehensive
review of the 41 claims asserted in this case, the
Court is compelled to note that while § 1983 cases
are often complex and involve multiple Defendants,
Plaintiffs in this case have exceeded all reasonable
bounds with respect to the length of their Complaint
and the breadth of claims and assertions contained
therein. The Western District of Virginia noted
similar concerns recently in a § 1983 case pending
there, stating that: “There is no question but that
[the] Complaint is extravagant not only in its length
(29 pages and 114 numbered paragraphs), but also
in its tone, containing numerous underlinings and
italics for emphasis and provocative bold headings,
such as, “Part of a Larger Conspiracy?” and, “Things
Go From Bad To Worse”. Surely Iqbal does not
require such spin and one wonders what counsel’s
aim is in drafting such a pleading. It certainly does
not help to persuade the court.” Jackson v. Brickey,
No. 1:10CV00060, 2011 WL 652735, at *12 n.4 (W.D.
Va. 2011). These concerns are substantially greater
in the present case, where Plaintiffs have seen fit to
file not 29 pages and 114 numbered paragraphs, but
428 pages and 1,388 numbered paragraphs, with
dramatic rhetoric and sweeping accusations against
a “Consortium” of 50 Defendants, most of which is
not relevant to the actual legally-recognized claims
that may be available. Indeed, Plaintiffs’ potentially
valid claims risk being lost in the sheer volume of
the Second Amended Complaint,97 and Plaintiffs’
The claims apparently became unmanageable even to
Plaintiffs, based on the inconsistent use of Defendant “groups”
97
346a
attempt at “spin” is wholly unnecessary and
unpersuasive in legal pleadings. Plaintiffs approach
has required the Court to undertake the timeconsuming process of wading through a mass of
legally unsupportable claims and extraneous factual
allegations in an attempt to “ferret out the relevant
material from a mass of verbiage.” 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice &
Procedure § 1281 (3d ed. 2004). The Court has
nevertheless undertaken this process and has
considered each of Plaintiffs’ claims, resulting in this
rather extensive Memorandum Opinion. The Court
trusts that, going forward, all of the parties will
reduce both the volume of filings and the rhetoric
contained therein, and will proceed on the remaining
claims in a direct, professional manner, without
requiring unnecessary involvement from the Court.
However, the Court is also compelled to note
that the allegations in the Second Amended
Complaint that are going forward, particularly as to
Counts 1, 2, and 5, set out allegations of significant
abuses of government power. Indeed, the intentional
or reckless use of false or misleading evidence before
a magistrate judge to obtain a warrant and effect a
search and seizure is exactly the type of
“unreasonable” search and seizure the Fourth
Amendment is designed to protect against. In this
regard, it has been noted that “‘if any concept is
fundamental to our American system of justice, it is
that those charged with upholding the law are
prohibited from deliberately fabricating evidence
and framing individuals for crimes they did not
and lack of consistency in determining which claims were
asserted against which Defendants.
347a
commit.’” Washington v. Wilmore, 407 F.3d 274, 285
(Shedd, J., concurring) (quoting Limone v. Condon,
372 F.3d 39, 44-45 (1st Cir. 2004)). In addition, “the
Supreme Court has long held that a police officer
violates the Fourth Amendment if, in order to
obtain a warrant, he deliberately or ‘with reckless
disregard for the truth’ makes material false
statements or omits material facts. . . . No
reasonable police officer . . . could believe that the
Fourth Amendment permitted such conduct.” Miller
v. Prince George’s County, 475 F.3d 621, 631-32 (4th
Cir. 2007) (internal citations omitted). Thus, there
can be no question that the Constitution is violated
when government officials deliberately fabricate
evidence and use that evidence against a citizen, in
this case by allegedly making false and misleading
representations and creating false and misleading
evidence in order to obtain an NTO against all of the
lacrosse team members and obtain a search warrant.
This case will therefore proceed to discovery on the
claims as set out above, and it will ultimately be
Plaintiffs’ burden to present proof in support of these
claims.
IT IS THEREFORE ORDERED that the
Motions to Dismiss [Doc. #167, 168, 169, 170, 171,
173, 174, 175, 176, 177, 179] are GRANTED IN
PART and DENIED IN PART as set out herein. IT
IS FURTHER ORDERED that the City of Durham’s
Motion for Summary Judgment [Doc. #86] is
DENIED at this time, without prejudice to the City
raising the issues asserted therein as part of a
comprehensive Motion for Summary Judgment at
the close of discovery.
348a
A
separate
Order
contemporaneously herewith.
will
be
entered
This, the 31st day of March, 2011.
/s/
United States District Judge
349a
[ENTERED MARCH 31, 2011]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH
CAROLINA
RYAN MCFADYEN, MATTHEW WILSON
and BRECK ARCHER
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:07CV953
ORDER
For the reasons set forth in the Memorandum
Opinion filed contemporaneously herewith,
IT IS ORDERED that the Motions to Dismiss
[Doc. #167, 168, 169, 170, 171, 173, 174, 175, 176,
177, 179] are GRANTED IN PART and DENIED IN
PART.
As a result, IT IS ORDERED that Plaintiffs
claims will go forward against Defendant Nifong in
Counts 1, 2, 5, and 18; against Defendant Gottlieb in
Counts 1, 2, 5, and 18; against Defendant Himan in
Counts 1, 2, and 18; against Defendant Levicy in
Counts 1, 2, and 18; against Defendant Smith in
350a
Counts 2 and 24; against Defendant Addison in
Count 5; against Defendant Wilson in Counts 5 and
18; against the City in Counts 1, 2, and 5 (based on
the allegations in Counts 12 and 14), as well as in
Counts 18, 25, 26, and 41; against Defendants
Hodge, Baker, Chalmers, Russ, Council, and
Ripberger in Counts 1, 2, 5, and 13; against
Defendant Lamb in Counts 1, 2, 5, 13, and 18;
against Clark and Meehan in Count 18; against DSI
in Counts 18 and 35; against Steel, Brodhead, Dzau
and Burness in Count 18; against Defendants
Graves, Dean, and Drummond in Count 24; against
Duke Health in Counts 18 and 32; and against Duke
in Counts 18, 21 (to the extent set out in the
Memorandum Opinion), 24, and 32.
IT IS THEREFORE ORDERED that all
remaining claims are DISMISSED, including all of
the claims asserted in Counts 3, 4, 6, 7, 8, 9, 10, 11,
15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34,
36, 37, 38, 39, and 40, and all of the claims asserted
against Defendants Humphries, Cooper, Garber,
Schwab, Fleming, Best, Stotsenberg, Lange, Trask,
Moneta, Haltom, Dawkins, Wasiolek, Bryan, Private
Diagnostic, Manly, Arico, Mihaich, Evans, Soukup,
Michael, Clayton, and the Duke Police Department.
IT IS FURTHER ORDERED that the claim for
punitive damages against the City is DISMISSED.
FINALLY, IT IS ORDERED that the City of
Durham’s Motion for Summary Judgment [Doc. #86]
is DENIED at this time, without prejudice to the
City raising the issues asserted therein as part of a
comprehensive Motion for Summary Judgment at
the close of discovery.
351a
This, the 31st day of March, 2011.
/s/
United States District Judge
352a
[ENTERED JANUARY 15, 2013]
FILED: January 15, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 11-1458
(1:07-cv-00953-JAB-WWD)
___________________
RYAN MCFADYEN; MATTHEW WILSON; BRECK
ARCHER
Plaintiffs - Appellees
v.
PATRICK
BAKER;
STEVEN
CHALMERS;
RONALD HODGE; LEE RUSS; BEVERLY
COUNCIL; JEFF LAMB; MICHAEL RIPBERGER
Defendants - Appellants
and
DUKE
UNIVERSITY;
DUKE
UNIVERSITY
POLICE
DEPARTMENT;
AARON
GRAVES;
ROBERT DEAN; LEILA HUMPHRIES; PHYLLIS
COOPER; WILLIAM F. GARBER, III; JAMES
SCHWAB; JOSEPH FLEMING; JEFFREY O. BEST;
GARY N. SMITH; GREG STOTSENBERG;
ROBERT K. STEEL; RICHARD H. BRODHEAD,
353a
Ph. D.; PETER LANGE, Ph. D.; TALLMAN TRASK,
III, Ph. D.; JOHN BURNESS; LARRY MONETA,
Ed. D.; DUKE UNIVERSITY HEALTH SYSTEMS,
INCORPORATED;
PRIVATE
DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD; THERESA
ARICO, R. N.; TARA LEVICY, R. N.; THE CITY OF
DURHAM,
NORTH
CAROLINA;
MICHAEL
NIFONG;
STEPHEN
MIHAICH;
EDWARD
SARVIS; LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE MICHAEL; DAVID ADDISON; MARK D.
GOTTLIEB; BENJAMIN W. HIMAN; LINWOOD
WILSON;
RICHARD
D.
CLAYTON;
DNA
SECURITY, INCORPORATED; RICHARD CLARK;
BRIAN MEEHAN, Ph. D.; VICTOR J. DZAU, MD;
ALLISON
HALTON;
KEMEL
DAWKINS;
SUZANNE WASIOLEK; STEPHEN
BRYAN;
MATTHEW
DRUMMOND;
DUKE
POLICE
DEFENDANTS
Defendants
___________________
No. 11-1460
(1:07-cv-00953-JAB-WWD)
___________________
RYAN MCFADYEN; MATTHEW WILSON; BRECK
ARCHER
Plaintiffs - Appellees
v.
354a
THE CITY OF DURHAM, NORTH CAROLINA;
DAVID ADDISON; MARK GOTTLIEB; BENJAMIN
HIMAN
Defendants - Appellants
and
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.; DUKE UNIVERSITY HEALTH SYSTEMS,
INCORPORATED;
PRIVATE
DIAGNOSTIC
CLINIC, PLLC; JULIE MANLY, MD; THERESA
ARICO, R. N.; TARA LEVICY, R. N.; MICHAEL
NIFONG;
STEPHEN
MIHAICH;
EDWARD
SARVIS; LAIRD EVANS; JAMES T. SOUKUP;
KAMMIE
MICHAEL;
LINWOOD
WILSON;
RICHARD D. CLAYTON; DNA SECURITY,
INCORPORATED; RICHARD CLARK; BRIAN
MEEHAN, Ph. D.; VICTOR J. DZAU, MD;
ALLISON
HALTON;
KEMEL
DAWKINS;
SUZANNE WASIOLEK; STEPHEN
BRYAN;
MATTHEW
DRUMMOND;
DUKE
POLICE
DEFENDANTS; PATRICK BAKER; STEVEN W.
CHALMERS; RONALD HODGE; LEE RUSS;
355a
BEVERLY COUNCIL; JEFF LAMB; MICHAEL
RIPBERGER
Defendants
___________________
ORDER
___________________
The petition for rehearing en banc was
circulated to the full court. No judge requested a poll
under Fed. R. App. P. 35. The court denies the
petition for rehearing en banc.
For the Court
/s/ Patricia S. Connor, Clerk
356a
N.C. Gen. Stat. § 15A-271 (2013)
§ 15A-271. Authority to issue order
A
nontestimonial
identification
order
authorized by this Article may be issued by any
judge upon request of a prosecutor. As used in this
Article, “nontestimonial identification” means
identification
by
fingerprints,
palm
prints,
footprints, measurements, blood specimens, urine
specimens, saliva samples, hair samples, or other
reasonable physical examination, handwriting
exemplars, voice samples, photographs, and lineups
or similar identification procedures requiring the
presence of a suspect.
357a
N.C. Gen. Stat. § 15A-273 (2013)
§ 15A-273. Basis for order
An order may issue only on an affidavit or
affidavits sworn to before the judge and establishing
the following grounds
for the order:
(1) That there is probable cause to believe that
a felony offense, or a Class A1 or Class 1
misdemeanor offense has been committed;
(2) That there are reasonable grounds to
suspect that the person named or described in the
affidavit committed the offense; and
(3) That the results of specific nontestimonial
identification procedures will be of material aid in
determining whether the person named in the
affidavit committed the offense.
358a
N.C. Gen. Stat. § 5A-12 (2013)
§ 5A-12. Punishment; circumstances for fine or
imprisonment; reduction of punishment; other
measures
(a) A person who commits criminal contempt,
whether direct or indirect, is subject to censure,
imprisonment up to 30 days, fine not to exceed five
hundred dollars ($ 500.00), or any combination of the
three, except that:
(1) A person who commits a contempt described
in G.S. 5A-11(8) is subject to censure, imprisonment
not to exceed 6 months, fine not to exceed five
hundred dollars ($ 500.00), or any combination of the
three;
(2) A person who has not been arrested who
fails to comply with a nontestimonial identification
order, issued pursuant to Article 14 of Chapter 15A
of the General Statutes is subject to censure,
imprisonment not to exceed 90 days, fine not to
exceed five hundred dollars ($ 500.00), or any
combination of the three; and
(3) A person who commits criminal contempt by
failing to comply with an order to pay child support
is subject to censure, imprisonment up to 30 days,
fine not to exceed five hundred dollars ($ 500.00), or
any combination of the three. However, a sentence of
imprisonment up to 120 days may be imposed for a
single act of criminal contempt resulting from the
failure to pay child support, provided the sentence is
suspended upon conditions reasonably related to the
contemnor's payment of child support.
359a
(b) Except for contempt under G.S. 5A-11(5) or
5A-11(9), fine or imprisonment may not be imposed
for criminal contempt, whether direct or indirect,
unless:
(1) The act
contemptuous; or
or
omission
was
willfully
(2) The act or omission was preceded by a clear
warning by the court that the conduct is improper.
(c) The judicial official who finds a person in
contempt may at any time withdraw a censure,
terminate or reduce a sentence of imprisonment, or
remit or reduce a fine imposed as punishment for
contempt if warranted by the conduct of the
contemnor and the ends of justice.
(d) A person held in criminal contempt under this
Article shall not, for the same conduct, be found in
civil contempt under Article 2 of this Chapter, Civil
Contempt.
(e) A person held in criminal contempt under G.S.
5A-11(9) may nevertheless, for the same conduct, be
found guilty of a violation of G.S. 14-225.1, but he
must be given credit for any imprisonment resulting
from the contempt.
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