MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 367

MOTION for Order to Show Cause why Plaintiffs, their Attorneys and lawfirms should not be held for violation of Rule 11: Sanctions by LINWOOD E. WILSON. Responses due by 4/21/2014 (WILSON, LINWOOD)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
1:07cv953

RYAN MCFAYDEN, et al
Plaintiffs,
v.
THE CITY OF DURHAM, NORTH CAROLINA
et al.,
Defendants.

MOTION FOR RULE 11;
SANCTIONS BY THE COURT ON
IT’S OWN INITIATIVE AND ISSUE
A SHOW CAUSE ORDER TO
PLAINTIFF’S

NOW COMES Defendant Linwood Wilson in a Motion for the Court, on it’s own
initiative as described in Rule 11, (c)(1)(B)(2)(A)(3) bring Motion To Show Cause why
Rule 11; Sanctions against all the plaintiffs and their attorneys of record, for filing
frivolous, unreasonable, without foundation, vexatious and groundless Complaint
1:07cv953 should not be granted .
FACTS
1. On December 17, 2007, the Plaintiffs by and through their counsel, EKSTRAND
& EKSTRAND, LLP, Attorneys Robert C. Ekstrand and Stephanie Sparks filed the
original complaint in this action.
2. On December 17, 2007, the Plaintiffs by and through their counsel, EKSTRAND &
EKSTRAND, LLP, Attorneys Robert C. Ekstrand and Stephanie Sparks filed the
original complaint in this action.

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3. On April 17, 2008 the Plaintiffs by and through their counsel, EKSTRAND &
EKSTRAND, LLP, Attorneys Robert C. Ekstrand and Stephanie Sparks filed the first
amended complaint in this action.
4. On April 18, 2008 the Plaintiffs by and through their counsel, EKSTRAND &
EKSTRAND, LLP, Attorneys Robert C. Ekstrand and Stephanie Sparks filed the
second amended complaint in this action.
5. On February 23, 2010, the Plaintiffs by and through their counsel, EKSTRAND &
EKSTRAND, LLP, Attorneys Robert C. Ekstrand and Stephanie Sparks filed the filed
the second amended complaint in this action.
6. On March 31, 2011, the Court entered a Memorandum Opinion [Doc. #186] and
Order [Doc. #187] granting in part and denying in part the Defendants’ various Motions
to Dismiss. Specifically, 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 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

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Steel, Brodhead, Dzau and Burness in Count 18; againstDefendants 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.
Thereafter, Defendants Addison, Gottlieb, Himan, Hodge, Baker, Chalmers, Russ,
Council, Lamb, Ripberger, and the City filed interlocutory appeals before the United
States Court of Appeals for the Fourth Circuit. The Fourth Circuit consolidated the
appeals filed in this case with the appeals filed by the same Defendants in the related
cases McFadyen et al. v Duke University et al., 1:07-CV-953 (M.D.N.C.), and Evans et
al. v. City of Durham, North Carolina, et al., 1:07-CV-739 (M.D.N.C.), Carrington, et al,
1:08 CV-119 (NCMD).

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In an Opinion and Judgment entered on December 17, 2012 Appeal: 11-1436 Doc: 91,
the Fourth Circuit reversed in part the decisions of this Court in the three related cases.

C. (From USCA Doc. 91)
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 thirty-eight 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
_______________________________
1

We note that one or more of the three complaints also allege claims against the private laboratory, Duke University,
and Duke employees,

Appeal: 11-1436 Doc: 91 Filed: 12/17/2012 Pg: 18 of 58
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 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.

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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 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.
_______________________________________
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.

Appeal: 11-1436 Doc: 91 Filed: 12/17/2012 Pg: 19 of 58

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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 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).
Although Defendant Wilson was acting as an investigator employed by the district
attorney’s office, and not as a police officer, during the investigation of the criminal case,
Plaintiffs concede that “nothing in the Fourth Circuit’s opinion suggests that this
distinction is a material one, particularly when [Defendant Wilson] was acting in an
‘investigatory capacity in the same criminal investigation.” (Pls.’ Resp. [Document 341
Page 18 of 20 Filed 05/30/13] For the foregoing reasons, Plaintiffs respectfully request
that the Court decide this Motion as to Plaintiffs constitutional claims after Plaintiffs’
petition for a writ of certiorari is ruled upon and any subsequent appellate proceedings are
concluded. If the petition 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.
5. Plaintiffs and their counsel should have known by recent rulings, as well as the
past rulings by the Supreme Court and lower courts “doctrines of immunity”, that they
were in fact filing frivolous, without foundation, unreasonable, groundless, or vexatious

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complaints. Thereby injuring Defendant Wilson’s reputation, causing extreme emotional
distress, loss of income and retirement, as well as having to defend himself, pro se, for
over 7 years in a frivolous, unreasonable, without foundation, vexatious and groundless
lawsuit. These actions brought on by the Plaintiff’s have damaged Defendant Wilson by
being a contributing factor in Defendant Wilson’s divorce and the loss of relationship
with his son. One might argue that Defendant Wilson should file a lawsuit for these
damages. However, Defendant Wilson argues that Rule 11 specifically accomplishes that
when it states:
Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the
Court; Sanctions
Federal Rule of Civil Procedure Rule 11provides that a district court may
sanction attorneys or parties who submit pleadings for an improper purpose
or that contain frivolous arguments or arguments that have no evidentiary
support.
Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations
to Court; Sanctions
(a) Signature.
Every pleading, written motion, and other paper shall be signed by at least
one attorney of record in the attorney's individual name, or, if the party is
not represented by an attorney, shall be signed by the party. Each paper
shall state the signer's address and telephone number, if any. Except when
otherwise specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. An unsigned paper shall be stricken
unless omission of the signature is corrected promptly after being called to
the attention of the attorney or party.
(b) Representations to the Court.
By presenting to the court (whether by signing, filing, submitting, or later
advocating) a pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances,(1) it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the
cost of litigation;

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(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a non-frivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
(c) Sanctions.
If, after notice and a reasonable opportunity to respond,
the court determines that subdivision (b) has been violated, the court may, subject
to the conditions stated below, impose an appropriate sanction upon the attorneys,
law firms, or parties that have violated subdivision (b) or are responsible for the
violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). It shall be served as
provided in Rule 5, but shall not be filed with or presented to the court
unless, within 21 days after service of the motion (or such other period
as the court may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or appropriately
corrected. If warranted, the court may award to the party prevailing
on the motion the reasonable expenses and attorney's fees incurred in
presenting or opposing the motion. Absent exceptional circumstances,
a law firm shall be held jointly responsible for violations committed
by its partners, associates, and employees.
(B) On Court's Initiative.
On its own initiative, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and directing
an attorney, law firm, or party to show cause why it has not violated
subdivision (b) with respect thereto.
(2) Nature of Sanction; Limitations.
A sanction imposed for violation of this rule shall be limited to what is
sufficient to deter repetition of such conduct or comparable conduct by
others similarly situated. Subject to the limitations in subparagraphs
(A) and (B), the sanction may consist of, or include, directives of a
non-monetary nature, an order to pay a penalty into court, or, if

8

imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of some or all of the reasonable
attorneys' fees and other expenses incurred as a direct result of the
violation.
(A) Monetary sanctions may not be awarded against a represented
party for a violation of subdivision (b)(2). (B) Monetary sanctions
may not be awarded on the court's initiative unless the court issues its
order to show cause before a voluntary dismissal or settlement of the
claims made by or against the party which is, or whose attorneys are,
to be sanctioned.
(3) Order.
When imposing sanctions, the court shall describe the conduct
determined to constitute a violation of this rule and explain the basis
for the sanction imposed.
(d) Inapplicability to Discovery.
Subdivisions (a) through (c) of this rule do not apply to disclosures
and discovery requests, responses, objections, and motions that are
subject to the provisions of Rules 26 through 37.
Rule 11 was amended effective December 31, 1993. The prior
version provides in pertinent part: Every pleading, motion, and other
paper of a party represented by an attorney shall be signed by at least
one attorney of record and in the attorney's individual name[.] . . . .
[T]he signature of an attorney or party constitutes a certificate by the
signer that the signer has read the pleading, motion or other paper;
that to the best of the signer's knowledge, information and belief
formed after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification or reversal of existing law, and that it is not interposed
for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation. . . . If a pleading,
motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the person
who signed it, a represented party or both, an appropriate sanction,
which may include an order to pay the other party or parties the
amount of the reasonable expenses incurred because of the filing of
the pleading, motion, or other paper, including a reasonable attorney's
fee. Even if the district court finds evidence to be insufficient for
purposes of summary judgment, that "does not mean that appellants'
claims were factually unfounded for purposes of Rule 11." Stitt
v.Williams, 919 F.2d 516, 527 (9th Cir. 1990). A district court may
impose monetary sanctions, in the form of attorneys' fees, upon

9

plaintiffs who file Title VII claims that are "frivolous, unreasonable,
or without foundation." See EEOC v. Bruno's Restaurant, 13 F.3d 285,
287 (9th Cir. 1993) (quoting Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 421-22 (1978)). However, "[b]ecause Congress
intended to `promote the vigorous enforcement of the provisions of
Title VII,' a district court must exercise caution in awarding fees to a
prevailing defendant in order to avoid discouraging legitimate suits
that may not be `airtight.' " Id. (quoting Christiansburg, 434 U.S. at
422); see also EEOC v. Consolidated Serv. Sys., 30 F.3d 58, 59 (7th
Cir. 1994) (suggesting that the "frivolous" standard is much more
stringent than merely "not substantially justified"). Courts must heed
"the Supreme Court's warning in Christiansburg against the temptation
to engage in post hoc reasoning by concluding that, because a plaintiff
did not ultimately prevail, his action must have been unreasonable or
without foundation.' " Bruno's Restaurant, 13 F.3d at 290 (quoting
Christiansburg, 434 U.S. at 421-22); see also Forsberg v. Pacific
Northwest Bell Tel. Co., 840 F.2d 1409, 1422 (9th Cir. 1988)
(applying the same "frivolous, unreasonable, or without foundation"
standard to request for sanctions under Rule 11 and 42 U.S.C. S
2000e-5(k)). Kizer v. Children's Learning Ctr., 962 F.2d 608, 613 (7th
Cir. 1992) affirms a district court's decision not to impose Rule 11
sanctions on a plaintiff who had failed to make out a prima facie case
under Title VII because the claim was not filed with improper motives
or inadequate investigation. Rule 11 sanctions are only available with
regard to papers filed with the court, not attorney misconduct. Fed. R.
Civ. P. 11; see also United Energy Owners Comm., Inc. v. United
States Energy Management Systems, Inc., 837 F.2d 356, 364-65 (9th
Cir. 1988). (Under pre-'93 rule)
6. Based on the Rule 11 Sanctions, as stated herein above, Defendant Wilson
states the specific reasons for this Motion is clearly the numerous Causes of Actions
filed, forty-one in this lawsuit. The fact that all of these Causes of Actions were
dismissed by either this court or the Fourth Circuit Court of Appeals is not justification
for a Rule 11 Sanction alone. Defendant Wilson’s Motion for Rule 11 Sanctions is based
on the fact that Plaintiffs by and through their attorneys filed frivolous, without
foundation, unreasonable, groundless, or vexatious claims that would award any other
defendant attorney fees.

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This Note argues that courts should grant a pro se litigant reasonable attorney's fees when
the opposing party has violated Rule 11. Part I examines the goals of Rule 11 and
concludes that Congress intended deterrence of abusive practices to drive the Rule 11
inquiry. Other, less important goals that inform the analysis include compensation of the
offended party and punishment of the offending party. Part II discusses the factors that
influence a judge in choosing a particular sanction and demonstrates that both practical
and policy-oriented criteria support an award of attorney's fees even when the movant
acts pro se. Part III contrasts the policy of Rule 11 with the goals of the fee-shifting
provisions in three federal statutes. Part III concludes that, although courts almost
uniformly deny pro se litigants fees under those statutes, the policies behind the feeshifting provisions do not implicate the concerns addressed by Rule 11; therefore, courts
are not bound by the cases denying fees under those statutes. Finally, Part IV suggests a
means of calculating the ultimate award to the pro se litigant.
I. THE GOAL(S) OF RULE 11
Deterrence must underlie any Rule 11 decision because "the purpose of Rule 11 sanctions
is to deter" abusive practices and frivolous arguments. The 1983 amendments to the rule
reinforced this notion by adding the word "sanctions" to the rule's title. In making this
change, the committee intended to "stress[ ] a deterrent orientation" for courts addressing
violations of Rule 11. Finally, the Supreme Court has recently declared that "the central
purpose of Rule 11 is to deter baseless filings."
The Supreme Court may recognize punishment as an additional rationale for imposing a
Rule 11 sanction, even though its recent cases have emphasized deterrence. Moreover,
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the advisory committee has previously noted that "punishment of a violation . . . is part of
the court's responsibility for securing the system's effective operation." Though several
lower courts and commentators have echoed this position, they have not always seen
punishment as a goal in and of itself as much as a means of achieving the deterrence
objective. Given that view, and considering the Court's and advisory committee's
hesitancy to rely solely on a punishment-based theory, courts should consider punishment
only as a secondary factor in the Rule 11 sanction analysis.
Though also subordinate to the deterrence goal, a third, compensatory objective inheres
in the rule as well. Providing for a sanction such as attorney's fees -- whose amount
correlates to the expenses incurred by the offended party -- appears to suggest a policy
more akin to compensation than deterrence. The committee note makes clear, however,
that a Rule 11 sanction, though potentially calculated on the basis of the movant's
monetary expenditures, still has deterrence as its primary objective. Thus "a district court
may take into account compensation of other parties and punishment of the offender, but
deterrence remains the touchstone of the Rule 11 inquiry."
When the movant acts pro se, emphasizing deterrence over compensation makes all the
difference: because an unrepresented party's expenses will be relatively low, little if any
deterrent effect would accrue from forcing the non-movant to reimburse only those
expenses. Were a court to focus on compensation, it would transform Rule 11 into a feeshifting statute, thereby undermining the Supreme Court's insistence that the rule remain
a mechanism for preventing litigation abuse. With deterrence as the overriding theme, the

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actual amount of fees incurred becomes less important than the size of sanction required
to send an effective message both to the offender and to the bar in general.
II. DETERMINING THE APPROPRIATE SANCTION
A grant of attorney's fees to a pro se litigant follows directly from the legislative
objective of deterrence. This Part illustrates the reasons for, and addresses the potential
objections to, making an attorney's fees award to an unrepresented party. Section II.A
explains that while trial judges have significant discretion in determining the type and
severity of sanctions that they can impose under Rule 11, attorney's fees are by far the
most frequent and most logical choice. Section II.A concludes that courts should make
that same choice when the movant acts pro se. Section II.B refutes arguments against
making the award -- including those based on statutory language and on fears of granting
movants potential windfalls -- in favor of honoring the deterrence rationale that controls
Rule 11.
A. Why Choose Attorney's Fees?
Among all the sanctions a trial judge could choose, only attorney's fees will fulfill the
goals of Rule 11. Only if a court imposes a substantial monetary sanction -- only if it
"hits them where it hurts" -- will parties be dissuaded from violating the rule's
prescriptions. A sanction imposing the mere costs incurred by a pro se litigant -- for
example, filing and copying costs -- would be insignificant and thus would not deter
future abusive conduct. A fees award, on the other hand, carries a large enough price tag
that it will serve the appropriate deterrent effect.

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As an alternative, one might suggest assessing a fine payable directly to the court. This
approach would provide the same deterrent effect as a fees award and simultaneously
would avoid awarding fees when none were incurred. Such a route, however, would be
unfavorable for several reasons. First, judges should strive to treat represented and
unrepresented parties consistently -- that is, they should impose similar sanctions for
similarly offensive conduct, regardless of who the offended party might be. Because
represented parties whose opponents violate Rule 11 are almost always granted attorney's
fees, pro se litigants should receive that same award. Second, requiring the non-movant to
pay the fine into court would deprive the pro se litigant of any compensation, which is a
lesser yet significant goal of the rule. This litigant, after all, did experience some
compensable harm -- whether in terms of opportunity costs or in terms of the
administrative costs of responding to the offensive paper. Third, the advisory committee
itself suggests that there exist some circumstances in which the objectives of Rule 11 can
be achieved only if the sanction is paid directly to the other party and not into court.
Fourth, and perhaps most important, denying the unrepresented litigant any award, or
compensating him solely for his costs, would reduce the incentive pro se parties have to
bring Rule 11 actions -- and thus would reduce enforcement of the rule itself. Once a
litigant is aware that her pro se adversary is unlikely to institute a Rule 11 proceeding,
that litigant may become more lax in monitoring and curbing her own potentially
violative behavior.
When a party does violate Rule 11, the sanction should be only as severe as necessary to
deter the offending party and the bar. A fees award therefore might not be necessary if a

14

court could meet the deterrence goal through other, nonmonetary sanctions. The reverse,
however, is also true. A court may impose a sanction in excess of the movant's attorney's
fees if the court believes that such a sanction is necessary to deter further violative
conduct.
Consider the Case of Rynkiewicz v. Jeanes Hospital. There the defendants moved to
dismiss the pro se plaintiff's ADEA claim even though there was no legal basis for that
motion. In denying the motion and imposing sanctions, the trial judge wrote, "I see no
reason why the fact that plaintiff is proceeding pro se should redound to the benefit of
defendants' attorney insofar as Rule 11 sanctions are concerned." That no fees were
incurred was immaterial. The Court therefore awarded the pro se litigant the amount of a
reasonable attorney's fee.
Because trial judges are entrusted with much discretion in effectuating the underlying
policy of the FRCP, "the Civil Rules place virtually no limits on judicial Creativity."
Thus the advisory committee encourages district courts engaging in the sanctioning
calculus to consider many different factors relating to the offending paper. Specifically,
the court may weigh certain equitable factors that do not necessarily reflect the expenses
or fees incurred. Interpreting Rule 11 to include these considerations allows judges to
assess an award substantial enough to force the offending party "to answer for [her] act."
At bottom, the express grant of judicial latitude, coupled with the requirement that judges
match sanctions to the requisite degree of deterrence, ensures that courts will impose
sanctions, including attorney's fees, that reflect the offensiveness of the violation and not
the representation vel non of the movant.

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There is a final important reason to choose attorney's fees as the proper sanction. The use
of sanctions other than attorney's fees is rare under Rule 11. Presumably judges would
not consistently award these fees if the sanction did not serve the goals of the rule. To
continue achieving those goals, judges should punish similar violations with similar
sanctions, regardless of the movant's status. Thus, when a movant is unrepresented, the
judge should choose the same effective sanction that he would apply if the movant were
not proceeding pro se -- that is, a fees award.
When the violation is wilful, judges are similarly more likely to impose a fees award than
any other sanction. Therefore, when a party has taken advantage of a pro se litigant's
status, for example, by inundating him with excessive motions or stimulating significant
filing costs -- significant in terms of the pro se party's financial resources -- assessing an
attorney's fee against the offending party has even more appeal. (Taken in part From
Michigan Law Review, Jeremy D. Spector, author.)
Pro Se litigants entitled to Fees:
Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights
Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988
IV.
ATTORNEY'S FEES
The Civil Rights Attorney's Fees Awards Act of 1976(91) provides that one who
prevails(92) in a section 1983 action is entitled to recover attorneys' fees. There is little
********************
(91)

42 U.S.C. § 1988.

92)

One who recovers nominal damages is not a prevailing party. Farrar v. Hobby, 506 U.S. 103,
114 (1992). The Court reasoned that the most critical factor in determining the reasonableness of
a fee award is the degree of success obtained. Id. at 114 (citing Hensley v. Eckerhart, 461 U.S.
424, 436 (1983)). Also, see Marek v. Chesny, 473 U.S. 1 (1985), for a discussion of the
interplay between 42 U.S.C. § 1988 and the offer of judgment provision contained in
Fed.R.Civ.P 68.

doubt that the addition of this attorney's fee provision fueled the growth in the number of

16

section 1983 cases that have been filed because it has been held that prevailing plaintiffs
are entitled to recover attorneys' fees unless special circumstances would render such an
award unjust, while a prevailing defendant may be awarded attorneys' fees only "upon a
finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith." The different standards derive from 42
U.S.C. § 1988's generally pro-plaintiff and pro-civil rights orientation and protects the
defendant only from groundless litigation.
7. Federal Rule of Civil Procedure 11provides that a district court may sanction
attorneys or parties who submit pleadings for an improper purpose or that contain
frivolous arguments or arguments that have no evidentiary support. Defendant Wilson
knows the following are such pleadings by Plaintiffs and their respective Attorneys of
Record.
¶ 788-789 Are not factual as implied against Defendant Wilson. They are frivolous,
groundless and without foundation and completely known by Plaintiffs’ Attorneys. (See ¶
795 and ¶ 796 below)
¶ 795, Sentence two and three come from Defendant Wilson’s written report from his
Interview of Levicy on January 10, 2007.
¶ 796 Sentence 1 is taken from Defendant Wilson’s report as a result of Levicy’s phone
call to Defendant Wilson on January 11, 2007.
How could Plaintiffs’/ Attorneys allege Defendant Wilson was part of a conspiracy with
Levicy after his reports changed her original statements, that Defendant Wilson wasn’t
aware of because he was not involved in the investigation at that time. Plaintiffs and

17

Attorneys know that is factual. You can’t hide behind “upon information and belief”
when you have the proof before you in Wilson’s written report.
Plaintiffs and their Attorneys continue to claim Defendant Wilson conspired, obstructed
justice, and falsified reports. Yet they know Defendant Wilson’s report from January 10
and 11, 2007 cleared up Levicy’s statements. Plaintiffs and their Attorneys never talk
about Defendant Wilson’s infamous interview of Crystal Mangum on December 21,
2006. The Plaintiffs and their Attorneys just plain didn’t want to believe the truth. They
assumed Defendant Wilson went there with the intentions of getting Ms. Mangum to
change her story so it would fit the timeline better and somehow help with the upcoming
photo lineup hearing, coming up sometime in the future, which Defendant Wilson knew
nothing about. Defendant Wilson wrote a report of what took place on December 21,
2006, yet the Plaintiffs and their brilliant attorneys wanted to make it fit their version of
why Defendant Wilson went. Everyone knew that Defendant Wilson went there to tell
Crystal Mangum that Mike Nifong was turning the case over to the Attorney General’s
office and that she needed to make sure that she wanted to proceed with the prosecutions.
It was this interview, by Defendant Wilson, that got the rape charges dropped. What, no
credit for getting to the truth? “We all know when you assume, you are making an ass
out of you, not me.” So where is the conspiracy here other than frivolous accusations by
the Plaintiffs and their Attorneys with the main intent to defame Defendant Wilson’s
character and reputation, to harass him, intimidate him and do anything they could to
damage his credibility should he ever have to testify in this case. The Plaintiffs in this
case were simply trying to do to the defendants what Plaintiffs were claiming the

18

Defendants had done to them. Oh let’s throw it up on the ceiling and see if it sticks!
Well it didn’t stick, it never made it to the ceiling.
(a) FIFTH CAUSE OF ACTION:
FALSE PUBLIC STATEMENTS IN VIOLATION OF 42 U.S.C. §1983
(Against Addison, Gottlieb, Hodge, and Wilson, in their individual and official
capacities; Nifong in his individual capacity and his official capacity with respect to the
Durham Police; Arico, Steel, Brodhead, Burness, in their individual capacities and
official capacities with Duke University)
¶955-956(D), 957-968 are frivolous, have no evidentiary support, and are intended to
harass, intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys were just unfounded and they
were just throwing causes of actions up to see how many would stick. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(b) TENTH CAUSE OF ACTION:
DEPRIVATION OF THE PRIVILEGES AND IMMUNITIES OF NORTH
CAROLINA CITIZENS IN VIOLATION OF 42 U.S.C. §1983
(Against All Defendants in their individual and official capacities)
¶ 1002-1007are frivolous, have no evidentiary support, and are intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Defendant Wilson did not become involved in this case until
after the indictments and arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully
aware that Defendant Wilson was a civilian investigator as provided in the NC Statues

19

and had no power of arrest, no prosecutorial authority and in no way could Defendant
Wilson have arrested or prosecuted Plaintiffs, nor could he have prevented the
indictments, arrests, and prosecution of the Plaintiffs. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. Defendant Wilson was forced to
represent himself pro se to defend these frivolous accusations.
(c) THIRD CAUSE OF ACTION:
FABRICATION OF FALSE EVIDENCE IN VIOLATION OF 42 U.S.C. § 1983
(Against Nifong, Clark, Gottlieb, Himan, Meehan, Wilson, and DSI in their individual
capacities)
¶ 1055 are frivolous, have no evidentiary support, and are intended to harass, intimidate,
and harm the character and reputation of Defendant Wilson bringing emotional distress,
loss of employment, income, retirement, family and future employment possibilities.
Plaintiffs and their Attorneys knew that Defendant Wilson was at no time involved in any
meetings, conversations, or any interaction between Nifong, Gottlieb, Himan, Meehan,
and DSI. Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not
become involved in this case until after the indictments and arrests of the Plaintiffs. .
Plaintiffs and their Attorneys are fully aware that Defendant Wilson was a civilian
investigator as provided in the NC Statues and had no power of arrest, no prosecutorial
authority and in no way could Defendant Wilson have arrested or prosecuted Plaintiffs,
nor could he have prevented the indictments, arrests, and prosecution of the Plaintiffs.
Plaintiffs and their Attorneys brought frivolous, unreasonable, without foundation,
groundless and vexatious Complaint against Defendant Wilson. That is a clear violation

20

of Rule 11. Defendant Wilson argues to the court that the purpose of bringing these
frivolous actions were in hopes, since Wilson was pro se, he would roll over and help
Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson was
forced to represent himself pro se to defend these frivolous accusations.
(d) THIRTEENTH CAUSE OF ACTION:
SUPERVISORY LIABILTIY FOR VIOLATIONS OF 42 U.S.C. § 1983
(Against Duke Police Supervising Defendants, Duke Officials Defendants,
Durham Police Supervising Defendants, in their Individual Capacities; and
the City of Durham and Duke University)
Although Defendant Wilson is not named above in this action, Wilson is named in
¶ 1114 which is frivolous, has no evidentiary support, and is intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and
arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. That is a clear violation of Rule 11. Defendant Wilson
argues to the court that the purpose of bringing these frivolous actions were in hopes,
since Wilson was pro se, he would roll over and help Plaintiffs prove allegations that they

21

knew they could not prove. Defendant Wilson was forced to represent himself pro se to
defend these frivolous accusations.
(e) FOURTEENTH CAUSE OF ACTION:
FAILURE TO TRAIN IN VIOLATION OF 42 U.S.C. §1983
Against the City of Durham, Duke University, and DNASI
Plaintiffs do not name Defendant Wilson in the above cause of action, however
¶ 1141 does name Defendant Wilson as a City of Durham Police Officer. Another
frivolous, unreasonable, without foundation, vexatious and groundless Cause of Action
which is intended to harass, intimidate, and harm the character and reputation of
Defendant Wilson bringing emotional distress, loss of employment, income, retirement,
family and future employment possibilities. Plaintiffs and their Attorneys knew that
Defendant Wilson was at no time involved in any meetings, conversations, or any
interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. . Plaintiffs
and their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.

22

(f) FIFTEENTH CAUSE OF ACTION:
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983
(Against Nifong in his Individual Capacity and in his Official Capacity with Respect to
the Durham Police and the City of Durham; and against Wilson, the DNASI Defendants,
the Duke University Defendants, and the City of Durham Defendants in their Individual
and Official Capacities)

¶1147-1155 are frivolous, unreasonable, without foundation, vexatious and groundless
Cause of Action which is intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. . Plaintiffs
and their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(g) SIXTEENTH CAUSE OF ACTION:
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985
(Against Nifong in his Individual Capacity and his Official Capacity with

23

respect to the Duke Police and Durham Police; Gottlieb, Himan, Wilson,
Addison, Michael, Durham Police Supervising Defendants, the Chairman,
the Crisis Management Team Defendants, the Duke Police Supervising
Defendants, the SANE Defendants, Meehan, Clark, DNASI, in their
Individual and Official Capacities, and Nifong in his official capacity with
respect to the Durham Police and Duke Police; the City of Durham and
Duke University)
¶ 1156-1169 Are frivolous, unreasonable, without foundation, vexatious and groundless
Causes of Action which are intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. Plaintiffs and
their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(h) SEVENTEENTH CAUSE OF ACTION:
FAILURE TO INTERVENE IN VIOLATION OF 42 U.S.C. § 1986
(Against Nifong in his individual capacity and his official capacity with

24

respect to the Durham Police Department; Steel, Brodhead, Wilson, the
Crisis Management Team Defendants, the Duke Police Department
Defendants, the SANE Defendants, the DNASI Defendants, the Durham
Police Department Defendants, in their individual and official capacities;
the City of Durham and Duke University)

¶1170-1188 Are frivolous, unreasonable, without foundation, vexatious and groundless
Causes of Action which are intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. Plaintiffs and
their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(i) EIGHTEENTH CAUSE OF ACTION:
COMMON LAW OBSTRUCTION OF JUSTICE & CONSPIRACY
(Against Nifong in his Individual Capacity and in his Official Capacity
with Respect to Durham Police; Steel, Brodhead, Burness, Gottlieb, Himan,

25

Lamb, Wilson, Meehan, Clark, DNASI, Levicy, Manly, Arico, and Dzau, in
their Individual and Official Capacities; DNASI, PDC, DUHS, and Duke
University)
¶ 1189-1202 Are frivolous, unreasonable, without foundation, vexatious and groundless
Causes of Action which are intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. Plaintiffs and
their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. That is a clear
violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(j) NINETEENTH CAUSE OF ACTION:
COMMON LAW ABUSE OF PROCESS & CONSPIRACY
(Against Nifong in his individual capacity and in his official capacity with respect to
Durham Police; Addison, Gottlieb, Himan, Clayton, Wilson, the CMT Defendants, the
SANE Defendants; the in their individual and official capacities; Duke University and the
City of Durham)

26

¶ 1203-1212 Are frivolous, unreasonable, without foundation, vexatious and groundless
Causes of Action which are intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. Plaintiffs and
their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. Plaintiffs and their
attorneys know Defendant Wilson had absolutely no contact with any Plaintiff in any of
these cases. That is a clear violation of Rule 11. Defendant Wilson argues to the court
that the purpose of bringing these frivolous actions were in hopes, since Wilson was pro
se, he would roll over and help Plaintiffs prove allegations that they knew they could not
prove. Defendant Wilson was forced to represent himself pro se to defend these frivolous
accusations.
(k) TWENTIETH CAUSE OF ACTION:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND
CONSPIRACY
(Against Gottlieb, Himan, Lamb, Wilson, Meehan, Clark, Addison, Hodge, Steel,
Brodhead, Burness, Levicy, Manly, Arico, and Dzau in their in their individual and
official capacities; Nifong in his individual and official capacity as an official with
delegated policymaking authority from the City

27

of Durham; DUHS, PDC, Duke University, and DNASI )
¶ 1213-1222 Are frivolous, unreasonable, without foundation, vexatious and groundless
Causes of Action which are intended to harass, intimidate, and harm the character and
reputation of Defendant Wilson bringing emotional distress, loss of employment, income,
retirement, family and future employment possibilities. Plaintiffs and their Attorneys
knew that Defendant Wilson was at no time involved in any meetings, conversations, or
any interaction between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their
Attorneys knew that Defendant Wilson was at no time employed by the City of Durham.
Plaintiffs and their Attorneys are fully aware that Defendant Wilson did not become
involved in this case until after the indictments and arrests of the Plaintiffs. Plaintiffs and
their Attorneys are fully aware that Defendant Wilson was a civilian investigator as
provided in the NC Statues and had no power of arrest, no prosecutorial authority and in
no way could Defendant Wilson have arrested or prosecuted Plaintiffs, nor could he have
prevented the indictments, arrests, and prosecution of the Plaintiffs. Plaintiffs and their
attorneys know Defendant Wilson had absolutely no contact with any Plaintiff in any of
these cases. That is a clear violation of Rule 11. Defendant Wilson argues to the court
that the purpose of bringing these frivolous actions were in hopes, since Wilson was pro
se, he would roll over and help Plaintiffs prove allegations that they knew they could not
prove. Defendant Wilson was forced to represent himself pro se to defend these frivolous
accusations.
(e) EIGHTH CAUSE OF ACTION:
CONSPIRACY IN VIOLATIONOF 42 U.S.C. § 1985(2) (OBSTRUCTION OF
JUSTICE)
(Against Nifong, Addison, Clark, Gottlieb, Himan, Meehan, Wilson, the Supervisory
Defendants, and DSI in their individual capacities; and the City of Durham based on the

28

actions of City employees and agents in their official capacities)
¶ 445-452 are frivolous, have no evidentiary support, and are intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and
arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded and they were
just throwing them up to see how many would stick. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. A fishing expedition! Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations.
(f) NINTH CAUSE OF ACTION:
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985(2)
(WITNESS TAMPERING)
(Against Nifong, Gottlieb, Himan, Wilson, and the Supervisory Defendants in their
individual capacities; and the City of Durham based on the actions of City employees and
agents in their official capacities)

29

¶ 453-459 are frivolous, have no evidentiary support, and are intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and
arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded and they were
just throwing them up to see how many would stick. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. Defendant Wilson was forced to
represent himself pro se to defend these frivolous accusations. These Plaintiffs and
Attorneys have not alleged any specific action, that Defendant Wilson, did that was in
anyway a conspiracy. All they have done is lump everyone, with the exception of then
President Bush, together and called it a conspiracy. When the Attorneys on behalf of the
Plaintiffs investigated the claims brought in the causes of actions, where are the specifics
or proof of their sincere investigation to verify, as they are required to do, all these
allegations in all these Causes of Actions? There is a lot of speculation and “I sure hope

30

this is true” in the lawsuit, but not one shred of evidence. They brought these charges for
the notoriety and have drawn them out for eight years now. I hope they got paid well.
(g) TENTH CAUSE OF ACTION:
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985(3)
(Against Nifong, Addison, Clark, Gottlieb, Himan, Meehan, Wilson, the Supervisory
Defendants, and DSI in their individual capacities; and the City of Durham based on the
actions of City employees and agents in their official capacities)
¶ 460-467 are frivolous, have no evidentiary support, and are intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and
arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded and they were
just throwing them up to see how many would stick. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. Defendant Wilson was forced to
represent himself pro se to defend these frivolous accusations. These Plaintiffs and
Attorneys have not alleged any specific action that Defendant Wilson did that was in

31

anyway a conspiracy. All they have done is lump everyone, with the exception of then
President Bush, together and called it a conspiracy. When the Attorneys on behalf of the
Plaintiffs investigated the claims brought in the causes of actions, where are the specifics
or proof of their sincere investigation to verify, as they are required to do, all these
allegations in all these Causes of Actions? There is a lot of speculation and “I sure hope
this is true” in the lawsuit, but not one shred of evidence.
(h) THIRTEENTH CAUSE OF ACTION:
MALICIOUS PROSECUTION AND CONSPIRACY
(Against Nifong, Addison, Clark, Gottlieb, Himan, Meehan, Wilson, and DSI in their
individual capacities; and the City of Durham based on the actions of City employees and
agents in their official capacities)
¶486-497 It is all the same over and over without any specific allegations of proof.
Defendant Wilson argues these are frivolous, have no evidentiary support, and are
intended to harass, intimidate, and harm the character and reputation of Defendant
Wilson bringing emotional distress, loss of employment, income, retirement, family and
future employment possibilities. Plaintiffs and their Attorneys knew that Defendant
Wilson was at no time involved in any meetings, conversations, or any interaction
between Nifong, Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are
fully aware that Defendant Wilson did not become involved in this case until after the
indictments and arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware
that Defendant Wilson was a civilian investigator as provided in the NC Statues and had
no power of arrest, no prosecutorial authority and in no way could Defendant Wilson
have arrested or prosecuted Plaintiffs, nor could he have prevented the indictments,
arrests, and prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded
and they were just throwing them up to see how many would stick. That is a clear

32

violation of Rule 11. Defendant Wilson argues to the court that the purpose of bringing
these frivolous actions were in hopes, since Wilson was pro se, he would roll over and
help Plaintiffs prove allegations that they knew they could not prove. Defendant Wilson
was forced to represent himself pro se to defend these frivolous accusations. These
Plaintiffs and Attorneys have not alleged any specific action that Defendant Wilson did
that was in anyway a conspiracy. All they have done is lump everyone, with the
exception of then President Bush, together and called it a conspiracy. When the Attorneys
on behalf of the Plaintiffs investigated the claims brought in the causes of actions, where
are the specifics or proof of their “sincere investigation” to verify, as they are required to
do, in all these allegations in all these Causes of Actions? There is a lot of speculation
and “I sure hope this is true” in the lawsuit, but not one shred of evidence.
(i)
FOURTEENTH CAUSE OF ACTION:
OBSTRUCTION OF JUSTICE AND CONSPIRACY
(Against Nifong, Clark, Gottlieb, Himan, Meehan, Wilson, and DSI in their individual
capacities; and the City of Durham based on the actions of City employees and agents in
their official capacities)
¶ 498-507 Another “I sure hope this sticks cause we ain’t got no evidence to support it”
These paragraphs, just like all the rest of them, say the same thing except the changing of
a word. Still frivolous, have no evidentiary support, and are intended to harass,
intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and

33

arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded and they were
just throwing them up to see how many would stick. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. Defendant Wilson was forced to
represent himself pro se to defend these frivolous accusations. These Plaintiffs and
Attorneys have not alleged any specific action that Defendant Wilson did that was in
anyway a conspiracy. All they have done is lump everyone, with the exception of then
President Bush, together and called it a conspiracy. When the Attorneys on behalf of the
Plaintiffs investigated the claims brought in the causes of actions, where are the specifics
or proof of their “sincere investigation” to verify, as they are required to do, in all these
allegations in all these Causes of Actions? There is a lot of speculation and “I sure hope
this is true” in the lawsuit, but not one shred of evidence.
(j) FIFTEENTH CAUSE OF ACTION:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND CONSPIRACY
(Against Nifong, Addison, Clark, Gottlieb, Himan, Hodge, Meehan, Wilson, and DSI in
their individual capacities; and the City of Durham based on the actions of City
employees and agents in their official capacities)

¶508-517 Plaintiffs just changed the words to Intentional Infliction of emotion distress
and conspiracy. These paragraphs, just like all the rest of them, say the same thing except

34

the changing of a word. Still frivolous, have no evidentiary support, and are intended to
harass, intimidate, and harm the character and reputation of Defendant Wilson bringing
emotional distress, loss of employment, income, retirement, family and future
employment possibilities. Plaintiffs and their Attorneys knew that Defendant Wilson was
at no time involved in any meetings, conversations, or any interaction between Nifong,
Gottlieb, Himan, Meehan, and DSI. Plaintiffs and their Attorneys are fully aware that
Defendant Wilson did not become involved in this case until after the indictments and
arrests of the Plaintiffs. . Plaintiffs and their Attorneys are fully aware that Defendant
Wilson was a civilian investigator as provided in the NC Statues and had no power of
arrest, no prosecutorial authority and in no way could Defendant Wilson have arrested or
prosecuted Plaintiffs, nor could he have prevented the indictments, arrests, and
prosecution of the Plaintiffs. Plaintiffs and their Attorneys were unfounded and they were
just throwing them up to see how many would stick. That is a clear violation of Rule 11.
Defendant Wilson argues to the court that the purpose of bringing these frivolous actions
were in hopes, since Wilson was pro se, he would roll over and help Plaintiffs prove
allegations that they knew they could not prove. Defendant Wilson was forced to
represent himself pro se to defend these frivolous accusations. These Plaintiffs and
Attorneys have not alleged any specific action that Defendant Wilson did that was in
anyway a conspiracy. All they have done is lump everyone, with the exception of then
President Bush, together and called it a conspiracy. When the Attorneys on behalf of the
Plaintiffs investigated the claims brought in the causes of actions, where are the specifics
or proof of their “sincere investigation” to verify, as they are required to do, in all these

35

allegations in all these Causes of Actions? There is a lot of speculation and “I sure hope
this is true” in the lawsuit, but not one shred of evidence.
On page 28 of the USCA Opinion the court states:
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 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.
***************************************************

7

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

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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 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
_________________________________
affidavits. We reject plaintiffs’ suggestion that defendants—and courts—should scour severalhundred 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

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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.").
8

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)

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,
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 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.
One could go on forever about the frivolous, unreasonable, without foundation, vexatious
and groundless lawsuits brought by the Plaintiffs and quote all the findings by Fourth
Circuit Court of Appeals, however I would ask the court to view those. Especially the
opinion of Circuit Judge Wilkinson and Gregory.

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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 well-intentioned 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 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

39

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.").
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.

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Paulk, 611 F.3d 828, 853 (11th Cir. 2010) (dismissing a stigma-plus 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).
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. To begin with, the Supreme Court explained in Iqbal that "a
supervisor’s mere knowledge" that his subordinates are engaged in unconstitutional

41

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 so-called 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
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

42

"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 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

43

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 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

44

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. 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 intra-organizational 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 1of 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

45

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.
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.
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 court-ordered 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

46

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 simultaneously encouraged to seek judicial
sanction in doing so.
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.

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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.
Defendant Wilson believes Judge Wilkinson just plain told it like it was. It is clear from
his opinion that these are baseless claims against all defendants. Judge Gregory’s opinion
states the Plaintiffs were wrong on all issues including the state common law claims.
Rule 11; Sanctions is the only way to stop this kind of frivolous, unreasonable, without
foundation, vexatious and groundless complaints.
CONCLUSION
For all the foregoing reasons this case needs to be stopped right now, in it’s tracks. It is going
nowhere despite the March 14, 2014 Status Conference held by your Honor. I don’t need to go
into those minutes as your Honor is familiar with his own order. I cannot speak for the other
defendants in this case, however it appears to me that instead of moving ahead in a manner to
settle this case, we are moving backwards. I don’t know about the other defendants nor do I
insinuate that I am speaking for anyone other than myself. There has been absolutely no real
movement towards settling this action. Instead it seems that in the Macfayden, et al case
1:07cv953 the Plaintiffs’ Attorney was filing motions before I even got back to Durham. Red
lining, what’s with that? Nothing has changed. It would seem that Plaintiffs’ Attorney in
Macfayden, is prolonging this case so he can retire off it. In all due respect, I’m sure he can find
other Duke Students to represent.
In ALL due respect to the Court, the Law, and your Honor, if the court cannot see what’s
going on in this case then it’s blind. Judge Beaty I truly believe it is time for you to put a stop to

48

this kind of actions by attorneys who know better. What better way to sanction them than hit
their pocketbooks. To allow this to continue is a Malfeasance of justice.

PRAYER FOR RELIEF
NOW COMES Defendant Linwood Wilson, pursuant to Rule 11 of the FRCP, to ask your
Honor, on his own initiative, as provided by law, to issue an order for Show Cause as why
sanctions against Plaintiffs and Plaintiffs’ Attorneys and law firms for violation of Rule 11 as
stated in this Motion for Rule 11; Sanctions should not be granted. Defendant Wilson believes
the appropriate relief for him in order to stop this kind of action in future filings be as follows:

1. Find that the Plaintiffs, by and through their Attorneys, violated FRCP Rule 11 by
filing frivolous, unreasonable, without foundation, vexatious and groundless
complaints against Defendant Wilson; and
2. Find that the Attorneys of Record, and their law Firms, for the Plaintiffs violated
FRCP Rule 11 by filing frivolous, unreasonable, without foundation, vexatious and
groundless complaints against Defendant Wilson; and
3. Award Attorney Fees for Pro Se Defendant Wilson pursuant to Rule 11; Sanctions, as
stated herein above, in the reasonable amount of Three Million Dollars
($3,000,000.00); and
4. Any other relief the court deems fit.
Respectfully Submitted this the 27th day of March, 2014.

By:/s/Linwood E. Wilson
Linwood E. Wilson, Pro Se
6910 Innesbrook Way
Bahama, NC 27503

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CERTIFICATE OF ELECTRONIC FILING AND SERVICE
The undersigned hereby certifies that, pursuant to Rule 5 of the Federal Rules of
Civil Procedure and LR5.3 and LR5.4, MDNC, the foregoing pleading, motion, affidavit,
notice, or other document/paper has been electronically filed with the Clerk of Court
using the CM/ECF system, which system will automatically generate and send a Notice
of Electronic Filing (NEF) to the undersigned filing user and registered users of record,
and that the Court's electronic records show that each party to this action is represented
by at least one registered user of record (or that the party is a registered user of record), to
each of whom the NEF will be transmitted.
This the 27th day of March, 2014.
By: /s/ Linwood E. Wilson
Linwood E. Wilson, Pro Se
6910 Innesbrook Way
Bahama, NC 27503

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