MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 394

RESPONSE in Opposition re #389 MOTION for Judgment on the Pleadings MOTION to Dismiss uncontested Motion (Doc. 346), #346 Third MOTION to Dismiss filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Replies due by 5/8/2014. (EKSTRAND, ROBERT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, ET AL.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, ET AL.,
Defendants.

PLAINTIFFS’ OPPOSITION TO LINWOOD WILSON’S
MOTION FOR JUDGMENT ON THE PLEADINGS
AND RENEWED MOTION TO DISMISS
This matter is before the Court on Defendant Linwood Wilson’s Motion for Judgment on the Pleadings [ECF 389] under
Fed. R. Civ. P. 12(c) and his Renewed Motion to Dismiss under
Fed. R. Civ. P. 12(b)(6). The Court should deny the Motion for
Judgment on the Pleadings and the Court should deny the renewed motion to dismiss except insofar as it seeks dismissal of
the Fifth Cause of Action.1 All of Wilson’s motions to dismiss
Plaintiffs’ common law obstruction of justice claim against him
should be denied.
THE RELEVANT FACTS
Plaintiffs’ Second Amended Complaint alleges that Defendant
Wilson “prevented, obstructed, impeded, or hindered” public justice in North Carolina by, among other things, conspiring with

Plaintiffs’ Status Report [ECF 350] concedes that their Fifth Cause of Action against Wilson should be dismissed.
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Gottlieb, Himan, Nifong, Steel, Dzau, Manly, Arico, Levicy,
DUHS, and Duke University, to fabricate forensic medical reports and records of Crystal Mangum’s SAE conducted at DUHS,
and then to conceal the fabricated evidence. [ECF 136 at 391 ¶
1193 and 257-66 ¶¶ 779-799 (Section XXXIV, “The SANE Conspiracy”).] Plaintiffs allege that the conspiracy continued from
the origins of the underlying investigation until Nifong transferred the case to the Attorney General, who, after reinvestigating the allegations, concluded that no crime occurred and that
there was no credible evidence to the contrary. [ECF 136 at 266
¶¶ 798-799.] While there is more, see, e.g., ECF 136 at 390-94 ¶¶
1189-1202, any one of the acts in furtherance of the SANE conspiracy is sufficient to state a common law obstruction of justice
claim.
In his Answer [ECF 377] to the Second Amended Complaint,
Wilson denies Plaintiffs’ contention that he participated in a conspiracy to obstruct justice. But Wilson admits most, if not all, of
the material facts Plaintiffs allege to support that claim. For example, Wilson admits Plaintiffs’ allegation that he participated in
the “interview conducted in the DA’s office . . . of Nurse Levicy.”
[ECF 377 at 143 (Answer ¶ 788).] Wilson admits that he “met
Nurse Levicy and Investigator Himan on the evening of January
10, 2007.” [Id. at 145 (Answer ¶ 798).] Wilson admits that, during
that January 10 meeting, he, Levicy, and Himan discussed how
Levicy would explain the absence of any DNA belonging to any
member of the Duke men’s lacrosse team on the swabs, smears,

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or any other evidence in the rape kit; and that “Nurse Levicy responded to multiple questions about condoms during her interview on January 10, 2007.” [Id. at 144 (Answer ¶795).] And, Wilson admits Plaintiffs’ allegation that, during the January 10,
2007, meeting, “Levicy stated that she ‘wasn’t surprised when
[she] heard no DNA was found because rape is not about passion
or ejaculation but about power.’” [Id. at 145 (Answer ¶796).]
THE STANDARD OF REVIEW
A motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is analyzed under the same standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Burbach Broad. Co. of
Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002).
Thus, the factual allegations in Plaintiffs’ Amended Complaint
and all reasonable factual inferences that may be drawn from
them are taken to be true and in the light most favorable to
Plaintiffs. See id. at 406.
On a Rule 12(c) motion the Court may consider the Answer as
well, but factual allegations in the Answer may be considered
“only where and to the extent they have not been denied or do not
conflict with the complaint.” Alexander v. City of Greensboro, 801
F. Supp. 2d 429, 433 (M.D.N.C. 2011) (quoting Jadoff v. Gleason,
140 F.R.D. 330, 331 (M.D.N.C. 1991)). “For the purposes of this
motion [the defendant] cannot rely on allegations of fact contained only in the answer, including affirmative defenses, which
contradict [the] complaint,” because “Plaintiffs were not required

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to reply to [the] answer, and all allegations in the answer are
deemed denied.” Id.; see Fed. R. Civ. P. 8(b)(6) ("If a responsive
pleading is not required, an allegation is considered denied or
avoided.").
In short, the question presented by a motion 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 the case can be decided as a
matter of law.” Alexander, 801 F. Supp. 2d 429, 433 (quoting
Smith v. McDonald, 562 F. Supp. 829, 842 (M.D.N.C. 1983), aff'd,
737 F.2d 427 (4th Cir. 1984), aff'd, 472 U.S. 479 (1985)); see id.
(collecting authorities).
ARGUMENT
I.

T HIS C OURT P REVIOUSLY R EJECTED W ILSON ’ S
A RGUMENTS FOR J UDGMENT ON THE P LEADINGS
O RDER D ENYING W ILSON ’ S M OTION TO D ISMISS .

IN

I TS

This Court consistently refuses to reconsider issues raised in a
Rule 12(c) motion that it fully addressed at the Rule 12(b)(6)
stage. See, e.g., Alexander, 801 F. Supp. 2d 429, 434. The Court
should follow that practice here. As explained below, Wilson raises nothing new in his Rule 12(c) motion. All of Wilson’s arguments for dismissal under Rule 12(c) were available to Wilson in
the proceedings on his motion for dismissal under Rule 12(b)(6),
and all of them were waived by Wilson’s failure to assert them in
those proceedings or rejected by the Court.

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II. W ILSON ’ S T HIRD M OTION

TO

D ISMISS

MERITS NO

CONSIDERATION BECAUSE IT VIOLATED THE

L OCAL

R ULES AND STATES NO BASIS FOR DISMISSAL OF
P LAINTIFFS ’ OBSTRUCTION OF JUSTICE CLAIM .
Wilson’s Third Motion to Dismiss [ECF 346] merits no consideration for several reasons. First, the motion violated LR 7.3(a),
which requires motions to dismiss to be accompanied by a brief;
Wilson filed no brief in support of his Third Motion to Dismiss.
Second, the motion violated LR 7.3(b) because it failed to state
“with particularity the grounds therefor.” Third, the motion violated LR 7.3(b) because it fails to “cite any statute or rule of procedure relied upon.” And by failing to file any supporting brief
whatsoever, Wilson violated the entirety of LR 7.3. Among other
things, Wilson failed to support his motion with “(1) [a] statement
of the nature of the matter before the Court; (2) [a] concise
statement of the facts . . .; (3) [a] statement of the question or
questions presented; [and] (4) [t]he argument” in support of his
motion. LR 7.3(a).
As for the motion itself, Wilson’s only contention is that
“Plaintiffs in all 3 cases stated, in their oppositions to Defendant
Wilson’s Motion to Dismiss (Doc 324 in 1:07cv953, Doc. 186 in
1:07cv739, Doc. 296 in 1:08cv119), that if the Fourth Circuit
Court of Appeals ruling is allowed to stand then the Motions to
Dismiss filed by Defendant Wilson should be granted.” [ECF 346
at 1.] Wilson’s contention is just plain false. In the McFadyen
case, Plaintiffs did not concede that their common law obstruction of justice claim against Wilson should be (or could be) dismissed based upon the Fourth Circuit’s ruling. See ECF 327
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(Plaintiffs’ Response to ECF 324). Thus, the only ground Wilson
asserted in support of his “Third Motion to Dismiss” has no merit,
and, if the Court considers it at all, the Court should deny it.
Furthermore, Wilson refers to his Motion to Dismiss [ECF
346], which is a renewal of his Motion to Dismiss [ECF 324] as
uncontested. That is also false. Plaintiffs’ responded to ECF 324
in their filing ECF 341. Wilson’s Motion to Dismiss [ECF 346] renewed Wilson’s Motion to Dismiss [ECF 324] following the Supreme Court’s denial of certiorari. However, pursuant to the
Court’s Order [ECF 340], Plaintiffs responded to Wilson’s Motion
to Dismiss [ECF 324] prior to the Supreme Court’s denial of certiorari. Wilson filed a reply [ECF 342] to Plaintiffs’ Response
[ECF 341]. There was no reason for Wilson to file ECF 346, renewing ECF 324, because ECF 324 had been responded to by
Plaintiffs, replied to by Wilson, and was pending before the
Court.
III. P LAINTIFFS ’ O BSTRUCTION OF J USTICE C LAIM A GAINST
W ILSON S HOULD N OT B E D ISMISSED
Wilson seeks dismissal from Count 18, which asserts a claim
for common law obstruction of justice against him and several codefendants, including Gottlieb, Himan, Nifong, Steel, Dzau, Manly, Arico, Levicy, and against Duke and/or DUHS based on
Levicy’s misconduct, pursuant to respondeat superior. [ECF 136
at 390-394 ¶¶ 1189-1202.] Count 18 alleges that Wilson obstructed justice by conspiring with Levicy and others to manufacture
and by manufacturing false and misleading forensic medical rec-

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ords and reports. [Id. ¶¶ 779-99 at 257-66 and ¶¶ 1189-1202 at
390-94.] In rejecting Wilson’s first attempt to dismiss this claim,
this Court concluded that “Plaintiffs have alleged significant misconduct in the creation of false and misleading evidence and destruction or alteration of potential evidence.” [ECF 186 at 147.]
For the reasons explained below, the Fourth Circuit’s decision in
Evans v. Chalmers does not alter the analysis of Plaintiffs’ common law obstruction of justice claim against Wilson, and the admissions he makes in his Answer [ECF 377] only bolsters that
conclusion.
A. The Fourth Circuit’s holding does not apply to
Wilson because Wilson is not “a police officer”
Wilson contends that the Fourth Circuit’s decision in Evans v.
Chalmers requires dismissal of Plaintiffs’ obstruction of justice
claim for the reasons the Fourth Circuit ruled that Plaintiffs
could not proceed against the three police officers named in that
claim because they were police officers. Moreover, the panel
acknowledged the breadth of common law obstruction of justice
under North Carolina law, which has been held to include, inter
alia, a sitting judge’s attempt to interfere with grand jury proceedings, In re Kivett, 309 S.E.2d 442 (N.C. 1983), a medical provider’s fabrication of medical evidence, Henry v. Deen, 310 S.E.2d
326, 334 (N.C. 1984), and the destruction of evidence, Grant v.
High Point Reg’l Health Sys., 645 S.E.2d 851, 855 (N.C. Ct. App.
2007). Evans, 703 F.3d at 658. However, because the panel could
not find “any case from any jurisdiction recognizing a commonlaw obstruction of justice claim against a police officer for his ac7

tions relating to a criminal proceeding,” it declined to forecast
that North Carolina’s Supreme Court “would recognize such an
action.” Evans, 703 F.3d at 658 (emphasis added) (citing Wilson
v. Ford Motor Co., 656 F.2d 960, 960 (4th Cir. 1981)).2
Linwood Wilson is not a police officer, never was a police officer, and does not even allege in his Answer that he was a police
officer. Therefore, Wilson cannot avail himself of a rule, if any exists, that bars a claim for obstruction of justice against police officers. But that is not all. There are several other defects in this
new claim. First, Wilson’s Answer denies that he was even acting
“under color of law” at any time, including when he joined the
conspiracy to obstruct justice. [See, e.g., ECF 377 at 172 ¶ 955.]
Second, Plaintiffs’ claim against Wilson is not “a common-law obstruction of justice claim against police officers based on how the
officers conducted a criminal investigation.” Evans, 703 F. 3d at
658. Third, Wilson does not point to any case in any jurisdiction
that, like North Carolina, recognizes a common law obstruction of
justice claim, but, at the same time, bars such an action against a
person employed as Wilson was, who participates in a conspiracy
to manufacture medical evidence and doctors medical records for
purposes of bolstering a patently false rape claim, causing criminal process to issue based on that false claim, and impeding vic-

In Wilson, no North Carolina court had addressed whether liability extended to an automobile manufacturer for defects in the design and manufacture of a vehicle that did not cause a collision, but exacerbated injuries
sustained thereafter. 656 F.2d at 961.
2

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tims of that misconduct from obtaining civil remedies for the
harm caused by such misconduct. Fourth, as explained below,
common law obstruction of justice has been interpreted broadly
enough by North Carolina’s Courts to include a right of action
against Wilson based on the misconduct Plaintiffs allege.
B. North Carolina courts define obstruction of justice
to include the misconduct Plaintiffs allege.
“Obstruction of justice” is a criminal offense under North Carolina General Statutes § 14-221 through §14-227, and it is also a
tort under North Carolina’s common law that is actionable upon
“any act which prevents, obstructs, impedes or hinders public or
legal justice.” Jones v. City of Durham, 183 N.C. App. 57, 59, 643
S.E.2d 631, 633 (N.C. Ct. App. 2007) (quoting Broughton v.
McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S.E.2d 20,
30 (N.C. Ct. App. 2003)); see 67 C.J.S. Obstructing Justice § 1
(“obstructing justice” means “impeding or obstructing those who
seek justice in a court or those who have duties or powers of administering justice in courts”). Thus, the tort is exceptionally
broad and includes, for example, claims that “[d]efendants attempted to impede the legal justice system through [a] false affidavit,” Jackson v. Blue Dolphin Commc’ns of N.C., L.L.C., 226 F.
Supp. 2d 785, 794 (W.D.N.C. 2002), and claims that defendants
“conspired to impede [the] investigation of this case by destroying
… records and by falsifying and fabricating records.” Henry v.
Deen, 310 N.C. 75, 86, 310 S.E.2d 326, 333 (N.C. 1984); see also
Reed v. Buckeye Fire Equip., 241 Fed. Appx. 917, 928 (4th Cir.
2007) (collecting cases); Henry, 310 N.C. at 86, 310 S.E.2d at 333
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(recognizing a potential claim for obstruction of justice where the
plaintiff alleged that the defendant had destroyed and falsified
medical records and thus impeded plaintiff’s claims in that action). Likewise, the North Carolina Court of Appeals recently
held that “any action intentionally undertaken by the defendant
for the purpose of obstructing, impeding, or hindering the plaintiff’s ability to seek and obtain a legal remedy will suffice to support a claim for common law obstruction of justice.” Blackburn v.
Carbone, 703 S.E.2d 788, 796 (N.C. Ct. App. 2010) (noting that
falsification of evidence could be a proper basis for liability for
common law obstruction of justice), rev. den., appeal dismissed,
710 S.E.2d 52 (N.C. 2011).
Wilson and his co-defendants have previously argued that a
claim for obstruction of justice may be based only on conduct in
connection with a civil lawsuit, not criminal investigations or
proceedings. This Court rejected that contention, noting that the
North Carolina Supreme Court ruled to the contrary in In re Kivett, which held that a sitting judge’s “attempt to prevent the
convening of the grand jury would support a charge of common
law obstruction of justice.” 309 N.C. 635, 670, 309 S.E.2d 442, 462
(N.C 1983); see also State v. Wright, 696 S.E.2d 832, 835 (N.C. Ct.
App. 2010) (noting that “common law obstruction of justice extends beyond interference with criminal proceedings”) (emphasis
added)); Henry, 310 N.C. at 87, 310 S.E.2d at 334 (recognizing
that an obstruction of justice claim could arise even if conduct occurred while no legal proceedings were pending or even threat-

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ened). Since the Court’s Order, the North Carolina Court of Appeals has held that common law obstruction of justice applies to
acts in connection with a criminal investigation. State v. Taylor,
713 S.E.2d 82, 88 (N.C. Ct. App. 2011), rev. den. 2011 N.C. LEXIS
707 (N.C., Aug. 25, 2011) (holding that common law obstruction
of justice includes interfering with the arrest and collection of evidence from a person suspected of driving while impaired). And,
in State v. Wright, the North Carolina Court of Appeals held that
common law obstruction of justice included a candidate’s filing of
“incomplete and false disclosure forms with the State Board of
Elections … for the purpose of obstructing or hindering the proper enforcement of the campaign finance reporting laws of this
state.” Wright, 696 S.E.2d 832, 838 (finding no error in jury instructions containing quoted language, affirming that common
law obstruction of justice can occur in connection with no civil or
criminal proceedings at all).
C. Even if common law obstruction of justice applied
only civil proceedings, that would still be no basis for
dismissal because that is what Plaintiffs allege.
This Court not only rejected Wilson’s arguments for dismissal
because they were wrong on the law but also because they were
wrong on the facts. The Court explained that even if his arguments did not require the Court to view the tort more narrowly
than North Carolina courts have and even if the conduct occurred
as part of a criminal investigation, it would still be was actionable under North Carolina law because Plaintiffs allege that Wilson’s conduct was intended to interfere with Plaintiffs’ ability to
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obtain remedies in a civil action. [ECF 186 at 143-48 (“even if the
state courts would ultimately require that the alleged obstruction
of justice occur in connection with a civil proceeding, Plaintiffs
assert that the obstruction of justice alleged in this case included
destruction and fabrication of evidence to prevent its use in future lawsuits or to “cover-up” misconduct and hinder Plaintiffs’
ability to bring a future claim.”).] Thus, this Court has already
ruled that Plaintiffs allege facts beyond mere interference with a
criminal proceeding, and Wilson offers no reason for the Court to
reverse itself now. Therefore, Wilson’s Motion for Judgment on
the Pleadings and his motions and renewed motions to dismiss
should be denied as to Plaintiffs’ common law claim against him
for obstruction of justice.
IV. W ILSON F AILED F ILE HIS M OTION “E ARLY E NOUGH
N OT TO D ELAY T RIAL .”
Rule 12(c) permits a party to move for judgment on the pleadings, but only so long as the motion is filed “early enough not to
delay trial.” Fed. R. Civ. P. 12(c). Given that this case is now in
its seventh year and that Plaintiffs have been prevented from
conducting discovery of any kind on their claims against Wilson
solely as a result of the Rule 12 motions already filed in this case,
Plaintiffs respectfully submit that Wilson has failed to file his
motion for judgment on the pleadings “early enough” as Rule
12(c) requires.

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CONCLUSION
Wilson’s Motion for Judgment on the Pleadings and his motions and renewed motions to dismiss should be denied as to
Plaintiffs’ Eighteenth Cause of Action for obstruction of justice
against Wilson. Plaintiffs have already advised the Court that
their Fifth Cause of Action should be dismissed to the extent that
the Fourth Circuit has ruled that it fails to state a constitutional
violation.
Respectfully submitted.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. State Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs
/s/ Stefanie Sparks Smith
Stefanie Sparks Smith
N.C. State Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, ET AL.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, ET AL.,
Defendants.
CERTIFICATE OF SERVICE
I certify that on the date stamped below, the foregoing Memorandum was electronically filed with the Court’s CM/ECF System,
which will issue a Notice of Electronic Filing (NEF) to counsel of record for every party registered to receive NEFs through the Court’s
CM/ECF System as set out below. I further certify that every party
to this action has at least one counsel of record registered to receive
NEFs in this action, and that they only unrepresented party, Linwood Wilson, has been permitted to register to receive the NEFs issued by the Court’s CM/ECF System in this action.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
Counsel for Plaintiffs

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