MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 390

BRIEF ON MOTION TO DISMISS UNCONTESTED MOTION (346) AND MOTION FOR JUDGMENT ON THE PLEADINGS by Defendant LINWOOD E. WILSON filed by LINWOOD E. WILSON. (Attachments: #1 Exhibit 1)(WILSON, LINWOOD)

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

RYAN McFADYEN, et al.,
Plaintiffs,

BRIEF IN SUPPORT OF MOTION TO
DISMISS UNCONTESTED MOTION TO
DISMISS DEFENDANT LINWOOD E.
WILSON’S RENEWED MOTION TO
DISMISS (Doc. 346) and JUDGMENT
ON THE PLEADINGS PURSUANT TO
RULE 12 (c) FRCP

v.

DUKE UNIVERSITY, et al.,
Defendants.

Defendant Linwood E. Wilson (“Defendant Wilson”) submits this brief in support
of his motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure. Given the recent decision in Evans v. Chalmers, 703 F.3d 636 (4th
Cir. 2012) (hereinafter the “Fourth Circuit decision”), Defendant Wilson is entitled to
judgment as a matter of law on Count 18 and uncontested motion to dismiss pursuant to
L.R. 7.3(k)
NATURE OF THE CASE AND STATEMENT OF THE FACTS
This action arises out of the investigation of members of the 2005-2006 Duke
men’s lacrosse team stemming from allegations of rape made by a stripper who
performed at a party hosted by the team captains at the off-campus house they rented.
None of the Plaintiffs were charged or tried for any offense resulting from the allegations.
Nevertheless, Plaintiffs sued Defendant Wilson, Duke, DUHS, certain Duke employees,
the City of Durham and associated individuals, and a DNA laboratory for purported
violations of their legal rights in connection with the investigation.

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Defendant Wilson, Duke, DUHS, and other defendants moved to dismiss the claims
against them, and the Court dismissed twenty-seven counts on 31 March 2011. (Order at
2, No. 1:07CV953 (M.D.N.C. Mar. 31, 2011) (DE 187)). The Court allowed discovery to
proceed against Defendant Wilson on two counts—Counts 5 (alleging false public
statements) and 18 (common law obstruction of justice and conspiracy).
(Order at 9, No. 1:07CV953 (M.D.N.C. June 9, 2011) (DE 218)). The Court
stayed all proceedings, including discovery, with respect to the remaining twelve
counts, pending resolution of an interlocutory appeal by the City of Durham and its’
officials. Id. Among the stayed counts were two claims brought under 42 U.S.C.
§ 1983 (Counts 5 and 18) against various combinations of the Durham-related
defendants; a state law obstruction of justice claim (Count 18) against Defendant Wilson
and others. On 17 December 2012, the Fourth Circuit issued an opinion reversing, inter
alia, the district court’s denial of the Durham defendants’ motions to dismiss the federal
claims against them, including the § 1983 claims in Counts 5, and the state law
obstruction of justice claims against them in Count 18. Evans, 703 F.3d at 659.

QUESTIONS PRESENTED
1. Whether Defendant Wilson is entitled to judgment as a matter of law on
Plaintiffs’ obstruction of justice and conspiracy claim in Count 18, which is based on his
alleged actions in aid of a criminal investigation, given the Fourth Circuit’s reasoning that
such a claim cannot be based on official investigative actions relating to a criminal
proceeding?

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2. Whether Defendant Wilson is entitled to judgment as a matter of law, on the only
claim still pending against him, Obstruction of Justice and Conspiracy in Count 18, given
the fact that Plaintiffs’, after 5 months passing, have failed to file a response to Defendant
Wilson’s Renewed Motion to Dismiss,14th day of November 2013 (Doc. 346), nor have
plaintiffs requested an extension of time from the court to file. *See Local Rules 7.3(k)
and 83.4(a)(2).
3. Whether Plaintiffs’ failure to file a response to the November 14, 2013 Renewed
Motion to Dismiss by Defendant Wilson constitutes an untimely response and an
abandonment of the claim?
4. Whether Plaintiffs’ failure to file a response to Defendant Wilson’s Motion To Dismiss
on November 14, 2013 constitutes an uncontested motion.
5. Whether Plaintiffs’ failure to file a response to Defendant Wilson’s Motion to Dismiss
(Doc 346) is a violation of Local Rules 7.3(k) and 83.4(a)(2).
STANDARD OF REVIEW
“A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed under the
same standard as a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.”
Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 723 (M.D.N.C. 2012). At the
12(c) stage, “the court is tasked with determining if the complaint contains ‘sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Guessford v. Pa. Nat’l Mut. Cas. Ins. Co., No. 1:12CV260, 2013 WL 170523, at *3
(M.D.N.C. Jan. 16, 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation omitted)). The Court must consider the facts alleged in the complaint to be true
and draw all reasonable inferences in favor of the nonmoving party. Mendenhall, 856 F.

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Supp. 2d at 723. However, the Court “‘need not accept the legal conclusions drawn from
the facts,’ and ‘need not accept as true unwarranted inferences, unreasonable conclusions
or arguments.’” Id. (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
“The test applicable for judgment on the pleadings is whether or not, when viewed in the
light most favorable to the party against whom the motion is made, genuine issues
of material fact remain or whether the case can be decided as a matter of law.”
Smith v. McDonald, 562 F. Supp. 829, 842 (M.D.N.C. 1983).
ARGUMENT
To state a claim under § 1983, Plaintiffs must adequately allege two elements: (1) that
Defendants “deprived [them] of a right secured by the Constitution and laws of the
United States”; and (2) that Defendants “deprived [them] of this constitutional right under
color of any [State] statute, ordinance, regulation, custom, or usage.” Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970) (internal quotation omitted).
I. UNDER THE FOURTH CIRCUIT’S HOLDING IN EVANS, DEFENDANT
WILSON IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON
PLAINTIFFS’ OBSTRUCTION OF JUSTICE CLAIM.
In Count 18, Plaintiffs allege that Defendant Wilson and others committed the
tort of obstruction of justice by “conspiring to manufacture and manufacturing false and
misleading forensic medical records and reports . . . with the knowledge that these reports
would be used to bring and maintain criminal prosecutions against Plaintiffs.” (Second
Am. Compl. ¶ 1193). This Court denied Officers Himan and Gottlieb’s motion to dismiss
Count 18. McFadyen, 786 F. Supp. 2d at 976. The Fourth Circuit reversed, holding that
North Carolina would not recognize a common law obstruction of justice claim “against a

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police officer for his actions relating to a criminal proceeding.” Evans, 703 F.3d at 658.
After the Fourth Circuit’s decision, Count 18 remains pending as to Defendant Wilson
and other Duke Defendants. The Fourth Circuit explained that “logic would seem to
compel [the] conclusion” that “criminal suspects (like the plaintiffs) cannot allege a
common law obstruction of justice claim against police officers based on how the officers
conduct a criminal investigation.” Evans, 703 F.3d at 658. By the same logic, Defendant
Wilson, a District Attorney Investigator cannot, as a matter of law, be held liable for
obstruction of justice based on how he conducts a criminal investigation. See id. The
actions Plaintiffs’ allege, as to Defendant Wilson in Count 18, involve solely his work in
the course of a criminal investigation. Specifically, Plaintiffs allege that Defendant
Wilson and others “obstructed justice by conspiring to manufacture and manufacturing
false and misleading forensic medical records and reports in the course of his
investigation as an Investigator employed by the North Carolina Administrative Office of
the Courts and assigned to the 14th Prosecutorial District, also a law enforcement agency
as it enforces the laws within it’s respective District.
NORTH CAROLINA STATUTES AND CODES
§ 7A-69. Investigatorial assistants.
The district attorney in prosecutorial districts 1, 3B, 4, 5, 7, 8, 11, 12, 13, 14, 15A, 15B,
16A, 18,19B, 20A, 20B, 21, 22A, 22B, 24, 25, 26, 27A, 27B, 28, 29A, 29B, and 30 is
entitled to one investigatorial assistant, and the district attorney in prosecutorial district
10 is entitled to two investigatorial assistants, to be appointed by the district attorney and
to serve at his pleasure.
It shall be the duty of the investigatorial assistant to investigate cases preparatory to trial
and to perform such other Duties as may be assigned by the district attorney. The
investigatorial assistant is entitled to reimbursement for his subsistence and travel
expenses to the same extent as State employees generally. (1975, c. 956, s. 6; 1977,
c.969, s. 1; 1981, c. 964, s. 2; 1993, c. 321, s. 200.7(e); 1997-443, s.18.16; 1998-212, s.

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16.21; 1999-237, s. 17.9; 2004-124, s.14.7(a); 2005-276, s. 14.2(p); 2007-323, s.
14.25(n).)
Job Description for District Attorney Investigator in the State of North Carolina
14th Prosecutorial District:
Duties may include but are not limited to:
Prepare felony cases by reading case files, examining files for proper reports, determining
sufficient evidence for prosecution, identifying areas lacking in information, advising
appropriate personnel of trouble spots such as gaps in information, evidence, and witness
credibility. Respond to Requests for Discovery by retrieving and preparing information
required by the statute and delivering same to defense counsel; complete motions as
directed; and prepare and issue court orders and subpoenas for records of all types (e.g.,
telephone, medical, utility, etc.). Locate or relocate witnesses; and interview witnesses,
including special expert witnesses. Serve subpoenas.
Provide diagrams, photographs, and other exhibits required for prosecution of cases.
Conduct special background investigations of witnesses, defendants, and potential jurors
as directed by the District Attorney.
Participate in case evaluations regarding disposition of cases.
Conduct investigations or fact-finding projects as requested by Judges, District Attorney
or Assistants and write reports.
Serve as a liaison between law enforcement agencies and the DA's office by assisting
other agencies with investigation of crimes, preparation of warrants, court orders, and
other documents; and provide training to law enforcement agencies on various topics
such as legal updates.
Manage extraditions by inquiring of other states defendants' intentions to waive the right

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to extradition, making arrangements for pick up, and processing necessary documentation
required to extradite defendant.
This position reports to the Administrative Assistant and requires approximately 10%
overnight travel.
Knowledge, Skills and Abilities / Competencies:
Knowledge of: evidence collection, investigative techniques and procedures; elements of
criminal law; processes and procedures of the judicial system; basic human psychology;
and social, cultural and economic fabric of the community.
Skills in: observation; analysis; information gathering; fact finding; interviewing; and
report writing.
Ability to: make pertinent observations and to analyze those observations against the
charges in a specific case or situation; effectively communicate with people of diverse
backgrounds; establish effective working relationships with law enforcement agencies;
write detailed, clear, and concise reports; coordinate and share information; and work as a
team member.
Must possess a valid NC Driver's License and reliable transportation.

Because Plaintiffs’ allegations are directed at such investigative work in aid of law
enforcement, Defendant Wilson is entitled to judgment as a matter of law on Count 18.
See Evans, 703 F.3d at 658.
II. UNDER L.R. 7.3(k), DEFENDANT WILSON IS ENTITLED TO JUDGMENT AS
A MATTER OF LAW ON PLAINTIFFS’ UNCONTESTED RENEWED MOTION
TO DISMISS FILED ON NOVEMBER 14, 2013 BY DEFENDANT WILSON.

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As a result of Plaintiffs’ failure to respond to Defendant Wilson’s Renewed
Motion to Dismiss (Doc. 346) the Court must grant the Uncontested Motion to Dismiss.
*See 1:13cv29, TRICIA IRENE GILBERT, vs. ATHENE ANNUITY & LIFE
ASSURANCE COMPANY (Exhibit 1) and See L.R. 7.3(k); see also Fed. R. Civ. P.
6(b)(1)(B) excusable neglect*.
Plaintiffs’ absence of Responding, not requesting an extension of time and not
stating any excusable neglect, after 5 months, is in itself inexcusable and is absolutely
reason for this Court to GRANT Defendant Wilson’s Renewed Motion to Dismiss and
award costs and fees pursuant to L.R. 83.4(a)(2).
CONCLUSION
For the reasons stated above, Linwood E. Wilson respectfully requests that the Court
enter judgment on the pleadings as to Count 18 and Defendant Wilson’s Renewed
Motion To Dismiss (Doc. 346).
This the 28th day of April, 2014
/s/ Linwood E. Wilson
Linwood E. Wilson, Pro Se
Email: [e-mail]
Address redacted

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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 28th day of April 2014.
By: /s/ Linwood E. Wilson
Linwood E. Wilson
Pro Se

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