MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 361

Joint Supporting BRIEF re #360 Joint MOTION to Strike #351 Amended Document, by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. (Attachments: #1 Exhibit A- Redline Comparison of Plaintiffs Two Filings, #2 Exhibit B- Reply Br. Supp. Pet. Writ Cert., #3 Exhibit C- Resp. in Oppn to Pet. Writ Cert.)(SUN, PAUL)

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

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EXPEDITED REVIEW REQUESTED
JOINT BRIEF IN SUPPORT OF
MOTION TO STRIKE
PLAINTIFFS’ UNTIMELY AND
UNAUTHORIZED
“CORRECTED” RESPONSE
BRIEF

Defendants Tara Levicy (“Nurse Levicy”), Gary Smith (“Officer Smith”),
Duke University (“Duke”), and Duke University Health System, Inc. (“DUHS”),
(collectively, “Defendants”) respectfully submit this brief in support of their
motion to strike Plaintiffs’ untimely and unauthorized “corrected” response brief
pursuant to Local Rules 7.3(k) and 83.4(a)(2).
INTRODUCTION
In their response to Defendants’ motion for judgment on the pleadings,
Plaintiffs conceded that Count 1 of their Second Amended Complaint should be
dismissed unless the Supreme Court granted Plaintiffs’ petition for a writ of
certiorari to review Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). Plaintiffs
agreed with Defendants that Evans foreclosed Count 1 by holding that Plaintiffs
failed to allege a constitutional violation under Count 1. When the Supreme Court

denied Plaintiffs’ petition, they did not try to withdraw their concession. Nor did
Plaintiffs advise this Court during the 14 March 2014 status conference, held for
the express purpose of discussing pending claims, that they wanted to withdraw
their concession that Evans foreclosed Count 1.
Instead, several hours after the status conference, more than one year after
Defendants moved for judgment on the pleadings, and nine months after Plaintiffs
filed their response, Plaintiffs tried to resurrect Count 1 by filing a redline
“corrected” response brief that was not authorized by the Court or the Local Rules.
In the “corrected” response, Plaintiffs stated that the Fourth Circuit “did not reach
the constitutional question” in dismissing Count 1. Plaintiffs asserted that Count 1
was still viable as to Nurse Levicy because the Fourth Circuit had rejected Count 1
on qualified immunity grounds, and declared that Nurse Levicy should not be
entitled to qualified immunity. Plaintiffs offered no justification for the untimely
filing, and in contravention of Local Rule 7.3(k), made no argument as to why
they should be excused from their waiver of any opposition to Defendants’ motion
for judgment on the pleadings on Count 1. Neither did Plaintiffs include any
argument in the “corrected” brief, as required by Local Rule 7.2(a), to support
their new position that Evans does not require dismissal of Count 1 against Nurse
Levicy.
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Defendants respectfully request that the Court strike Plaintiffs’ “corrected”
brief. In the alternative, Defendants respectfully seek leave to file a supplemental
reply brief in support of their motion for judgment on the pleadings.
NATURE OF THE CASE AND STATEMENT OF THE FACTS
This case arises out of the investigation of members of the 2005-2006 Duke
men’s lacrosse team based on rape allegations made by Crystal Mangum, a
stripper one of the team members hired to perform at a party. Plaintiffs were not
arrested, charged, or tried for any offense as a result of those allegations.
Nevertheless, Plaintiffs sued a host of municipal, institutional, and individual
defendants for purported violations of their legal rights in connection with the
investigation.
Plaintiffs Accuse Nurse Levicy of Constitutional Violations.
Although Nurse Levicy was a sexual assault nurse examiner (“SANE”)
trainee at DUHS, a private hospital, Plaintiffs have sought to hold her liable for
constitutional violations, alleging that she “was retained by the City of Durham[]
to provide forensic medical evidence collection and analysis services” for the
police investigation of Ms. Mangum’s allegations, “and in that capacity, acted
under color of state law.” (Second Am. Compl. ¶ 38 [DE 34]). In Count 1 of the
Second Amended Complaint, Plaintiffs asserted a claim against Nurse Levicy and
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others under 42 U.S.C. § 1983 based on alleged violations of the Fourth and
Fourteenth Amendments in connection with the issuance of the non-testimonial
order (“NTO”). (Id. ¶¶ 904-17).
Nurse Levicy Moves for Judgment on the Pleadings.
On 31 March 2011, this Court issued an order dismissing twenty-seven
counts of the Second Amended Complaint. [DE 187 at 2]. The Court denied
Nurse Levicy’s motion to dismiss Count 1, holding that Plaintiffs had pleaded a
plausible Fourth Amendment violation and that Plaintiffs’ allegation that Nurse
Levicy acted under color of state law was sufficient to maintain a constitutional
claim against her. McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 929 (M.D.N.C.
2011). On 17 December 2012, the Fourth Circuit issued its opinion in Evans,
holding, inter alia, that Plaintiffs failed to allege a constitutional violation
associated with the issuance of the NTO. Evans, 703 F.3d at 652, 654 & n.12.
Based on Evans, on 27 February 2013, Defendants filed a motion for judgment on
the pleadings seeking judgment on Counts 1, 2, and 18 as to Nurse Levicy, Count
2 as to Officer Smith, and Count 32 as to Duke and DUHS. [DE 335, 336].
On 25 March 2013, Plaintiffs responded to the motion for judgment on the
pleadings by requesting a stay on the ground that Plaintiffs intended to file a
certiorari petition seeking review of the Evans decision. [DE 337 at 2]. Plaintiffs
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noted in their motion that “even if the Fourth Circuit’s decision were to stand,”
they would “explain why the Court should deny the Joint Motion as to Counts 18
and 32.” [Id. at 2 n.1 (emphasis added)]. Plaintiffs did not express any intention
to attempt to refute Defendants’ arguments on Count 1. [See id. passim]. In the
alternative, Plaintiffs sought a sixty-day extension “so that the proceedings on the
Joint Motion may, at least, take into account the issues raised in Plaintiffs’ petition
for a writ of certiorari.” [Id. at 2]. The Court extended Plaintiffs’ response
deadline to match the date on which their certiorari petition was due. [DE 340].
Plaintiffs Concede That Evans Forecloses Count 1.
On 30 May 2013, having had ninety days to consider the arguments raised
in Defendants’ motion for judgment on the pleadings, Plaintiffs filed their
response in opposition to the motion. [DE 341]. In the response, Plaintiffs twice
conceded that “if Plaintiffs’ petition [for certiorari] is not granted or the Fourth
Circuit’s decision otherwise remains unmodified, Counts 1 and 2 must be
dismissed because this Court is bound by the Fourth Circuit’s conclusion that
those counts do not allege a constitutional violation.” [Id. at 2, 18]. Plaintiffs
opposed the motion only as to Counts 18 and 32. [See id. at 9-17]. Defendants
timely filed a reply brief, rendering the motion for judgment on the pleadings fully
briefed as of 17 June 2013. [DE 343]. Noting Plaintiffs’ concessions on Counts 1
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and 2, Defendants limited the substantive arguments in their reply brief to Counts
18 and 32. [See id. at 2-10]; see also LR 7.3(h) (limiting reply briefs “to
discussion of matters newly raised in the response”).
The premise of Plaintiffs’ petition for certiorari was that the Fourth Circuit
erred in Evans by holding that Plaintiffs failed to allege a constitutional violation
associated with the issuance of the NTO. [DE 344-1]. Plaintiffs noted in their
petition that Nurse Levicy had moved for judgment on the pleadings as to Count 1
based on the Fourth Circuit’s decision. [Id. at 28 n.5]. On 12 November 2013, the
Supreme Court denied Plaintiffs’ petition for a writ of certiorari. McFadyen v.
City of Durham, 134 S. Ct. 617 (2013).
Plaintiffs Attempt to Resurrect Count 1.
During the 14 March 2014 status conference regarding the remaining
claims, Plaintiffs’ counsel did not advise the Court that Plaintiffs were seeking to
withdraw their concession that Count 1 could not survive the decision in Evans.
On the evening of 14 March 2014, however, Plaintiffs filed two documents
purporting to resurrect Count 1.
First, Plaintiffs filed a Status Report of Remaining Claims and Defendants.
[DE 350]. Contrary to Plaintiffs’ counsel’s representations to the Court and
Plaintiffs’ previous filings, Plaintiffs represent in the status report that Count 1
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should remain pending against Nurse Levicy. [Id.]. In that status report Plaintiffs
for the first time stated their intention to file “an amended response to the pending
motion for judgment on the pleadings to correct Plaintiffs’ references to Counts 1,
2, and 5, and to clarify Plaintiffs’ position viz. the Fourth Circuit’s decision as to
those claims.” [Id. at 2].
Second, Plaintiffs filed a redline document, styled as a “corrected”
opposition to Defendants’ motion for judgment on the pleadings. [DE 351].
Plaintiffs’ “corrected” brief purports to respond “to the motion for judgment on the
pleadings as to Counts 1, 2, 5, 18, and 32.” [Id. at 1]. In this “corrected” brief,
Plaintiffs added four lines of text in the introductory “Background” section,
repeated in the “Conclusion,” to change their position on the effect of the Fourth
Circuit’s decision on Count 1. The addition states in full:
[N]or does [Evans] require dismissal of Count 1 against Levicy
because [the Fourth Circuit] did not reach the constitutional
question, holding that the police defendants were entitled to
qualified immunity, which Levicy does not share, [703 F.3d at]
650 n.6.
[Id. at 2, 18]. The “corrected” brief contains no argument in support of this
assertion.
Plaintiffs’ “corrected” redline brief does not reflect all of the changes from
the original filing. In their original brief, Plaintiffs admitted that “Counts 1 and 2
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must be dismissed because this Court is bound by the Fourth Circuit’s conclusion
that those counts do not allege a constitutional violation.” [DE 341 at 2, 18].
Plaintiffs’ “corrected” brief states that “Counts 2 and 1 5 must be dismissed
because this Court is bound by the Fourth Circuit’s conclusion that those counts
do not allege a constitutional violation.” [DE 351 at 2, 18]. The redline
“corrected” brief does not reflect that Plaintiffs deleted the word “and” and the
number “1” before the number “2”; nor does it reflect that Plaintiffs added the
word “and” after the number “2.”1 Plaintiffs’ redline “corrected” brief does reflect
the addition of references to Count 5, which was not the subject of Defendants’
motion for judgment on the pleadings. [See DE 335, 336].
Based on these facts, Defendants have moved the Court to strike Plaintiffs’
“corrected” brief. [DE 360].
QUESTIONS PRESENTED
I.

Whether Plaintiffs’ “corrected” response brief is properly stricken as

untimely and unauthorized?

Plaintiffs’ redline “corrected” brief does not reflect these additional
changes:
•
Page 9, final line: Plaintiffs changed “this claim” to “all claims.”
•
Page 10, sixth line: Plaintiffs changed “Tara Levicy” to “Levicy.”
An accurate redline comparison of Plaintiffs’ two filings is attached as Exhibit A.
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II.

Whether Plaintiffs waived the right to assert that Count 1 remains pending

against Nurse Levicy?
III.

Whether, in the alternative, Defendants should be allowed to file a

supplemental reply brief to refute Plaintiffs’ new position that Nurse Levicy
remains potentially liable under Count 1?
ARGUMENT
Plaintiffs’ “corrected” response brief advances a new contention to resurrect
Count 1—notwithstanding their earlier, express acknowledgment that it must be
dismissed—under the guise of a correction and clarification of the response they
filed nine months ago. Plaintiffs did not attempt to justify their untimely filing
because they cannot do so. Plaintiffs’ untimely and unauthorized “corrected” brief
is properly stricken on that ground. Moreover, pursuant to the Local Rules,
Plaintiffs have waived any contention that Count 1 survived Evans. Plaintiffs
knowingly conceded before this Court that Count 1 cannot survive after Evans
because the Fourth Circuit ruled that Count 1 does not allege a constitutional
violation, subject only to the possibility (at the time) that the Supreme Court could
reverse that ruling. Then, in their certiorari petition, Plaintiffs argued that the
Fourth Circuit erred in holding that they had not alleged a constitutional violation
in Count 1. Although Plaintiffs now say the Fourth Circuit “did not reach the
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constitutional question” in dismissing Count 1, they have never presented any
argument, including in the “corrected” brief, to show that they can maintain a
constitutional claim against Nurse Levicy in spite of Evans. Instead, Plaintiffs
manipulated the text of their response brief, giving the false impression that they
were only correcting a typographical error.
If Plaintiffs are permitted to advance this new contention, Defendants
respectfully seek leave to file a supplemental reply limited to addressing the new
contention. In short, Defendants’ supplemental reply would show the Court that
Plaintiffs were correct in conceding that Evans forecloses any claim against Nurse
Levicy for alleged constitutional violations.
I.

PLAINTIFFS’ UNTIMELY AND UNAUTHORIZED “CORRECTED”
RESPONSE BRIEF IS PROPERLY STRICKEN FOR VIOLATION OF
THE LOCAL RULES.
Because this Court granted Plaintiffs’ motion to extend the time to respond

to Defendants’ motion for judgment on the pleadings, Plaintiffs were allowed
three months to respond to that motion. [DE 340]. Plaintiffs filed their response
on 30 May 2013. [DE 341]. Pursuant to Local Rule 7.3(h), Defendants timely
filed their reply on 17 June 2013. [DE 343]. Nine months later, without seeking
leave of court, Plaintiffs filed their “corrected” response brief. [DE 351].
The Local Rules do not provide for the filing of “corrected” briefs in which
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a party fundamentally changes its position at any point, much less nine months
after briefing closes on a motion. When a party or its attorney fails to comply with
the Local Rules, the Court has discretion to “make such orders as are just under
the circumstances of the case, including . . . an order refusing to allow the failing
party to support or oppose designated claims or defenses.” LR 83.4(a), (a)(2).
When parties have filed papers in violation of the Local Rules, this Court has
exercised its discretion to strike those unauthorized filings. See, e.g., Richmond v.
Indalex, Inc., 308 F. Supp. 2d 648, 654 (M.D.N.C. 2004) (Beaty, J.) (striking
response to suggestion of subsequently decided authority as unauthorized by Local
Rules); Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., 243 F. Supp. 2d
386, 398 (M.D.N.C. 2003) (Beaty, J.) (striking filing styled “specific statement of
facts” accompanying response to motion for summary judgment for violation of
Local Rules); Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757, 761 (M.D.N.C.
2002) (Beaty, J.) (striking response to motion for summary judgment where
plaintiff had already filed response three months earlier); Miller v. Martin, CIV. A.
No. C-87-226-G, 1987 WL 46753, at *6 (M.D.N.C. July 20, 1987) (striking
unauthorized “reply to a reply” brief where party did not move for leave to file).
Striking Plaintiffs’ unauthorized “corrected” brief is warranted here. The
clerk’s notice that the motion for judgment on the pleadings was referred to the
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Court for decision after Defendants filed their reply brief did not prompt Plaintiffs
to try to “correct” their response brief; nor did the Supreme Court’s denial of their
petition for writ of certiorari prompt the filing of a “corrected” brief. Only when
the Court announced at the March 14 status conference that it would decide the
motion for judgment on the pleadings within sixty days did Plaintiffs submit a
“corrected” brief.
Rather than seek leave to file a new brief, Plaintiffs styled their filing a
“corrected” brief, giving the false impression they were only correcting an
innocent mistake. But there was no mistake. Plaintiffs’ redline shows the addition
of references to Count 5, although Defendants did not move for judgment on the
pleadings on Count 5. [DE 351 at 1, 2; see DE 335, 336]. Plaintiffs apparently
added references to Count 5 because Plaintiffs’ brief served as their response to
Defendants’ motion for judgment on the pleadings on Counts 1, 2, 18 and 32, and
to Linwood Wilson’s motions to dismiss Counts 5 and 18. [See DE 324, 346; DE
351 at 2 (“[T]he Fourth Circuit’s decision does not require dismissal of Plaintiffs’
obstruction of justice claim against Levicy or Wilson.”)]. However, Plaintiffs’
redline does not show that Plaintiffs deleted and added words in the sentence
where they made their earlier explicit concession on Count 1. Plaintiffs’ original
response conceded that Evans would foreclose “Counts 1 and 2”; the “corrected”
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response states that Evans would foreclose “Counts 2 and 1 5.” [Compare DE
341 at 2, 18 with DE 351 at 2, 18 (redlining as it appears in “corrected” brief)].
That is, without using the redline function, Plaintiffs deleted “1 and” before “2”
and then added “and 1” after “2,” making it appear that in the original response
they had conceded “Counts 2 and 1.” Plaintiffs then used to the redline function
to revise “1” to “5.”
Plaintiffs’ actions warrant the exercise of the Court’s discretion to strike the
“corrected” response brief, and Defendants thus respectfully request that the Court
strike Plaintiffs’ “corrected” response brief from the docket.
II.

PLAINTIFFS WAIVED THE RIGHT TO ADVANCE A NEW AND
CONTRADICTORY POSITION UPON REMAND.
When Defendants sought judgment on the pleadings on Count 1 as to Nurse

Levicy following Evans, Plaintiffs had a right to respond, and even obtained a
sixty-day extension to evaluate their claims. [DE 340]. After taking that time,
Plaintiffs conceded on two fronts that the Fourth Circuit’s decision in Evans
foreclosed Count 1 as to Nurse Levicy:
•

Before this Court, Plaintiffs admitted in response to the motion for
judgment on the pleadings that, unless the Supreme Court granted
their certiorari petition, “Counts 1 and 2 must be dismissed because
this Court is bound by the Fourth Circuit’s conclusion that those
counts do not allege a constitutional violation.” [DE 341 at 2, 18].

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•

In their certiorari petition, Plaintiffs argued that the Fourth Circuit
erroneously held that Plaintiffs failed to allege a constitutional
violation associated with the collection of evidence pursuant to the
NTO. [See DE 344-1 at 12-13, 39]. In their reply in support of that
petition, Plaintiffs explained that summary reversal of Evans would
“restore [Plaintiffs’] Section 1983 claim against “the private parties
who conspired with [police officers] to violate [Plaintiffs’] Fourth
Amendment rights by, for example, fabricating medical evidence and
altering medical records to corroborate the false rape allegation and
mislead a judicial official into issuing the NTO.” Reply Br. Supp.
Pet. Writ Cert. at 11 (emphasis added) (attached as Exhibit B).

There was nothing to “correct” in Plaintiffs’ response to the motion for
judgment on the pleadings as to Count 1, and no basis to “clarify” Plaintiffs’
position on the effect of the Fourth Circuit’s ruling. Plaintiffs did not need to
“correct” their statement that the Fourth Circuit concluded Count 1 does not allege
a constitutional violation—that is what the Evans court said. See 703 F.3d at 654
(“Because we hold that all plaintiffs failed to state predicate § 1983 claims against
the individual officers . . . .”); id. n.12 (“Given that we hold that plaintiffs failed to
state Fourth Amendment claims . . . .”). Plaintiffs cannot claim that their
concession before this Court that Evans foreclosed the Fourth Amendment claim
in Count 1 was a mistake when they asked the Supreme Court in their certiorari
petition to reverse Evans because it held that there was no constitutional violation.
[See DE 344-1 passim]; Reply Br. Supp. Pet. Writ Cert. at 11. Only the Supreme
Court’s reversal of Evans could “restore” the § 1983 claim against Nurse Levicy,
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one of the “private parties” Plaintiffs alleged had conspired with the police to
violate Plaintiffs’ Fourth Amendment rights. Reply Br. Supp. Pet Writ Cert. at 11.
When Plaintiffs chose not to challenge Defendants’ argument that Evans
foreclosed Count 1, holding out only the prospect (at the time) that the Supreme
Court might overturn that decision, Plaintiffs lost the right to oppose Defendants’
argument. See Moser v. MCC Outdoor, L.L.C., 256 F. App’x 634, 643 (4th Cir.
2007) (unpublished) (per curiam) (affirming district court’s ruling that plaintiff
abandoned claim by failing to address it in response to defendant’s summary
judgment motion); see also Brand v. N.C. Dep’t of Crime Control & Pub. Safety,
352 F. Supp. 2d 606, 618 (M.D.N.C. 2004) (holding plaintiff conceded one of his
claims by failing to address it in response to motion for summary judgment). Even
now, Plaintiffs’ “corrected” response brief still includes no argument to show that
they stated a constitutional claim against Nurse Levicy in Count 1, and thus
violates Local Rule 7.2(a). [See DE 351 passim]. Plaintiffs cite the footnote in
Evans where the Fourth Circuit said it was not addressing an alternative argument:
that North Carolina’s NTO statute itself is unconstitutional. [Id. at 2, 18 (citing
Evans, 703 F.3d at 650 n.6)].2 The only argument in the “corrected” response, like
the original response, addresses Defendants’ argument that Count 18 (as to Nurse
2

The correct citation is Evans, 703 F.3d at 649 n.6.
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Levicy) and Count 32 (as to Duke and DUHS) are properly dismissed based on
Evans. [See id. at 9-18]. Indeed, the response in opposition to Plaintiffs’
certiorari petition pointed out that Plaintiffs have never argued that the NTO
statute itself is unconstitutional. Resp. in Opp’n to Pet. Writ Cert. at 7-11
(attached as Exhibit C).
This Court’s Local Rules also make clear that “[t]he failure to file a brief or
response within the time specified in [Local Rule 7.3] shall constitute a waiver of
the right thereafter to file such brief or response, except upon a showing of
excusable neglect.” LR 7.3(k). Here, nine months after their response was due,
Plaintiffs filed their “corrected” response without offering any justification for the
untimely and unauthorized filing, let alone the required showing of excusable
neglect. See id.; Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 2d 746, 749
(M.D.N.C. 2003) (striking, based on Local Rule 7.3(k), “untimely and nonconforming” response where counsel sought extension after time expired without
asserting excusable neglect); see also Morris-Belcher v. Hous. Auth. of
Winston-Salem, No. 1:04CV255, 2005 WL 1423592, at *5 (M.D.N.C. June 17,
2005) (Beaty, J.) (rejecting assertion of excusable neglect where plaintiffs cited
attorney’s case load as reason for filing response to motion for summary judgment
five weeks late). By failing to file the “corrected” response brief within the three16

month period allotted for Plaintiffs’ response, Plaintiffs waived any right to file it.
See Salami v. Monroe, No. 1:07CV621, 2010 WL 817483, at *1 (M.D.N.C. Mar.
4, 2010) (Beaty, J.) (refusing to consider response brief filed out of time even after
plaintiff was granted an extension).
III.

IN THE ALTERNATIVE, DEFENDANTS SEEK LEAVE TO REFUTE
PLAINTIFFS’ NEW CONTENTION IN A SUPPLEMENTAL REPLY
BRIEF.
Under the Local Rules of this Court, after a party responds to a motion, the

party who originally filed the motion is allowed to file a reply brief addressing any
“matters newly raised in the response.” LR 7.3(h). Had Plaintiffs filed their
“corrected” response instead of the response brief that they filed on 30 May 2013,
Defendants would have addressed Plaintiffs’ assertions that the Fourth Circuit did
not reach the constitutional attack on the NTO statute in Evans and that Nurse
Levicy is not entitled to qualified immunity. If the Court should deny this motion
and consider the “corrected” response in ruling on Defendants’ motion for
judgment on the pleadings, Defendants respectfully request leave to file a
supplemental reply brief as allowed by Local Rule 7.3(h) to address the contention
raised for the first time in that “corrected” response brief.
Through their “corrected” response brief, Plaintiffs attempt to hold Nurse
Levicy liable for an alleged constitutional violation because she complied with the
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North Carolina NTO statute. See Evans, 703 F.3d at 652. Defendants would
argue in such a reply brief that Plaintiffs correctly conceded that Evans held that
Plaintiffs failed to allege a constitutional violation under Count 1. Further,
Defendants would argue that to the extent Nurse Levicy can be considered a state
actor for purposes of § 1983, she is entitled to the protection of qualified immunity
because she could not have “violate[d] clearly established statutory or
constitutional rights” in connection with the issuance of the NTO. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Evans, 703 F.3d at 649 n.6. In 2012, the
United States Supreme Court extended qualified immunity to private individuals
who perform public duties, including law enforcement functions. See Filarsky v.
Delia, 132 S. Ct. 1657, 1664-67 (2012). As a SANE trainee, Nurse Levicy was
trained to “conduct examinations for the purpose of collecting evidence” from
victims of sex crimes. N.C. Gen. Stat. § 90-171.38(b) (emphasis added).
Defendants are prepared to show that Nurse Levicy is thus entitled to the same
protection as public employees. See Filarsky, 132 S. Ct. at 1666.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court
strike Plaintiffs’ “corrected” response brief. If the Court should deny the motion

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to strike, Defendants respectfully request leave to file a supplemental reply brief to
address matters newly raised in the “corrected” response brief.
This the 24th day of March, 2014.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants

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

CERTIFICATE OF SERVICE
I hereby certify that on 24 March 2014, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all counsel of record and to Mr. Linwood Wilson,
who is also registered to use the CM/ECF system.

This the 24th day of March, 2014.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants