JAMES A. BEATY, District Judge.
This case involves 41 claims set out in an exhaustive 428-page Second Amended Complaint [Doc. #136] by Plaintiffs Ryan McFadyen ("McFadyen"), Matthew Wilson ("M. Wilson"), and Breck Archer ("Archer") against Defendants Duke University ("Duke"), the Duke University Police Department ("Duke Police"), Duke University Associate Vice President for Campus Safety and Security Aaron Graves ("Graves"), Director and Chief of the Duke Police Department Robert Dean ("Dean"), Duke Police Assistant Police Chief Leila Humphries ("Humphries"), Duke Police Major Phyllis Cooper ("Cooper"), Duke Police Medical Center Affairs Manager William F. Garber, II ("Garber"), Duke Police Major James Schwab ("Schwab"), Duke Police Lieutenant Joseph Fleming ("Fleming"), Duke Police Lieutenant Jeffrey O. Best ("Best"), Duke Police First Sergeant Gary N. Smith ("Smith"), Duke Police First Sergeant Greg Stotsenberg ("Stotsenberg"), Chairman of the Executive Committee of the Duke Board of Trustees Robert K. Steel ("Steel"), Duke President Richard H. Brodhead ("Brodhead"), Duke Provost Peter Lange ("Lange"), Duke Executive Vice President Tallman Trask, III ("Trask"), Duke Senior Vice President for Public Affairs and Government Relations John Burness ("Burness"), Duke Vice President for Student Affairs Larry Moneta ("Moneta"), Duke Chancellor for Health Affairs and President and Chief Executive Officer of Duke University Health Systems, Inc. Victor J. Dzau ("Dzau"), Duke Secretary Allison Haltom ("Haltom"), Duke Vice President for Campus Services Kemel Dawkins ("Dawkins"), Duke Assistant Vice President for Student Affairs and Dean of Students Suzanne Wasiolek ("Wasiolek"), Duke Associate Dean of Students and Director of Judicial Affairs Stephen Bryan ("Bryan"), Duke Auxiliary Services Senior Manager IT and Head of the Duke Card Office Matthew Drummond ("Drummond"), Duke University Health Systems, Inc. ("Duke Health"), Private Diagnostic Clinic, PLLC ("Private Diagnostic"), Duke Health Dr. Julie Manly ("Manly"), Duke Health Nurse Theresa Arico ("Arico"), Duke Health Nurse Tara Levicy ("Levicy"), the City of Durham ("the City"), former District Attorney Michael B. Nifong ("Nifong")
Defendants have collectively filed multiple, separate Motions to Dismiss, that is, a Motion to Dismiss by Defendant Meehan [Doc. #174], a Motion to Dismiss by Defendants Soukup, Michael, Addison and Clayton [Doc. #169], a Motion to Dismiss by Defendant Linwood Wilson [Doc. #167], a Motion to Dismiss by Defendants Duke, Brodhead, Bryan, Burness, Dawkins, Drummond, Dzau, Graves, Haltom, Lange, Moneta, Steel, Trask, and Wasiolek (collectively, the "Duke University Defendants") [Doc. #175], a Motion to Dismiss by Defendants Duke Health, Private Diagnostic, Arico, Levicy, and Manly (collectively, the "Duke SANE Defendants") [Doc. #177], a Motion to Dismiss by Duke Police, Best, Cooper, Dean, Fleming, Garber, Humphries, Schwab, Smith, and Stotsenberg (collectively, the "Duke Police Defendants") [Doc. #176], a Motion to Dismiss by Defendant Himan [Doc. #171], a Motion to Dismiss by Defendant Gottlieb [Doc. #168], a Motion to Dismiss by Defendants Baker, Chalmers, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Hodge [Doc. #170], a Motion to Dismiss by Defendants DSI and Clark [Doc. #173], and a Motion to Dismiss by the City [Doc. #179]. Defendants previously filed various Motions to Dismiss with respect to Plaintiffs' First Amended Complaint, but those Motions to Dismiss were rendered moot by the filing of Plaintiffs' Second Amended Complaint on February 23, 2010. In their present Motions to Dismiss the parties have incorporated the prior briefing filed in connection with the original Motions to Dismiss and, as appropriate, have added additional briefing with respect to new matters raised in the Second Amended Complaint. The new Motions to Dismiss with respect to the Second Amended Complaint were referred to the Court for determination on May 4, 2010, and are addressed in this Memorandum Opinion.
This case arises out of the investigation of members of the Duke University men's lacrosse team on charges of rape, sexual assault, and kidnapping. The Plaintiffs here are three members of the lacrosse team who were subject to a Non-Testimonial Order ("NTO") but who were not indicted in that investigation (the "Plaintiffs"). The Court here sets out the facts as alleged in the Second Amended Complaint, which the Court is required to accept as true for purposes of the present Motions to Dismiss.
On the evening of March 13, 2006, members of the lacrosse team hosted a party at a residence at 610 N. Buchanan Avenue. The residence was owned by Duke and rented by members of the lacrosse team, and was located in a neighborhood adjacent to Duke's campus. Two dancers were hired to perform at the party, and the first dancer, Kim Pittman, arrived at 11:15 p.m. The second dancer, Crystal Mangum, arrived at 11:40 p.m. but was "dazed and stumbling." (Second Am. Compl. ¶ 197). Plaintiffs allege that witnesses saw the dancers plan their routine outside of the residence and then enter the residence at midnight, which was corroborated by pictures taken at that time. When the performance began, Mangum was "incapable of dancing in any fashion," fell as she took off her shoes, and "was speaking unintelligibly." (Second Am. Compl. ¶ 201). The dance ended within four minutes and the dancers left the living room without objection from the guests. Mangum left her shoe on the living room floor. By 12:30, Mangum was observed outside the residence "apparently locked out" and "saying she lost her shoe." (Second Am. Compl. ¶ 205-206). Plaintiffs allege that pictures showed Mangum smiling, but stumbling around the backyard, and a picture taken at 12:41 showed Mangum being assisted into Pittman's car before Pittman drove away.
Plaintiffs allege that as she drove off, "Pittman made a derogatory racial remark and received one in turn." (Second Am. Compl. ¶ 215). Pittman "made a show of calling the police" and reporting the incident and directing police to 610 N. Buchanan, although Plaintiffs contend that "[i]t was plainly obvious from the 911 call itself that the call was a poorly veiled ruse." (Second Am. Compl. ¶ 216, 218). Durham Police Sergeant Shelton responded to the call but found no one there. Plaintiffs contend that the remaining guests had left based on prior incidents in which students were charged by police regardless of whether any actual offense had been committed, as discussed in greater detail below.
Pittman subsequently drove to a 24-hour grocery store to find a security guard to help get Mangum out of her car. The security guard, Angel Altmon, was unable
Plaintiffs contend that after the decision was made to initiate involuntary commitment proceedings at the Durham Access Center, Mangum overheard a radio exchange between officers in which one officer reported that Mangum had two young children at home, and the responding officer directed a police unit to go to Mangum's house to check on the children, and, if there was no adult supervision there, to call Department of Social Services. Plaintiffs contend that during the intake proceedings at the Durham Access Center, a nurse asked Mangum if she was raped and Mangum nodded "yes", thus "extract[ing] herself from the involuntary commitment proceedings, and spar[ing] herself the possibility of being separated from her children." (Second Am. Compl. ¶ 252). Plaintiffs contend that the intake nurse "thought Mangum's bizarre behavior was consistent with fractured thinking, and a break with reality." (Second Am. Compl. ¶ 253). Officer Barfield then transported Mangum to the Duke University Medical Center ("DUMC") Emergency Department for a sexual assault examination. Plaintiffs allege that during that ride, Mangum did not provide any other information regarding her sexual assault claim, but did provide Officer Barfield with a detailed description of the property she claimed was stolen by Pittman: "her money ($2,000), her ID, her cell phone, and her bag." (Second Am. Compl. ¶ 255). Plaintiffs contend that the Defendants were aware of all of this information and "agreed to conceal the evidence of the events at the Durham Center Access on March 14th, knowing their obvious relevance
Plaintiffs allege that when Mangum arrived at DUMC, Sgt. Shelton questioned Mangum about her rape claim. At that time, Mangum recanted the rape claim, but insisted that her money had been taken. However, "[a]s Sgt. Shelton was reporting that Mangum had recanted her rape claim to his Watch Commander, someone advised him that Mangum was now claiming she was raped again." (Second Am. Compl. ¶ 263). Plaintiffs contend that the audio recording of Sgt. Shelton reporting that Mangum had recanted "was erased by City of Durham Defendants" after Plaintiffs' defense counsel had requested that all audio recordings be preserved. (Second Am. Compl. ¶ 264).
Plaintiffs allege that Mangum then gave wildly varying accounts of the rape. Mangum was next interviewed by Durham Officer Gwen Sutton, and Plaintiffs allege that Sutton knew that Mangum was lying. During the course of the interviews, Mangum claimed that she had performed at a bachelor party at "610 N. Buchanan" and Sgt. Shelton thereafter established that Mangum and Pittman had both "worked at the address Pittman complained of in her 911 call: 610 N. Buchanan." (Second Am. Compl. ¶ 268, 273). Plaintiffs allege that "[a]s such, the investigation of Mangum's false allegations fell within the Duke Police Department's jurisdiction" and Duke Police Lt. Best was dispatched to DUMC to initiate the investigation for Duke Police. (Second Am. Compl. ¶ 273-274). A "transfer briefing" took place between Durham Police and Duke Police at a loading dock of DUMC shortly after 3:08 a.m. on March 14, 2006. The transfer briefing included Duke Police Major Schwab and "all of the supervisors." (Second Am. Compl. ¶ 277-279). In addition, Plaintiffs allege that the Duke Officer in Charge at DUMC responded to the Emergency Department, and from his observations, concluded that Mangum was "faking," which he reported to Lt. Best. Lt. Best instructed Officer Day and others to go to 610 N. Buchanan to make contact with the occupants, and after leaving 610 N. Buchanan, Officer Day returned to the Emergency Department to assist Lt. Best. While there "Officer Day took a full report of the findings of the Durham Police investigation up to that point" including that involuntary commitment proceedings had been underway, that Mangum had given several conflicting accounts and had recanted her claims, and that "Durham Police decided that the rape investigation should not be pursued any further, leaving open only the possibility of misdemeanors arising out of Mangum's claim that Pittman stole her money, ID, cell phone, and purse." (Second Am. Compl. ¶ 285). Lt. Best was also advised that the 911 call reporting a racial epithet at 610 N. Buchanan was a ruse made by Pittman. Plaintiffs allege that "[s]ome, but not all, of these findings were included in Officer Day's written report" which was submitted that same morning and was reviewed and approved by Duke Police supervisors Dean and Best and by Duke Police Investigator Smith. (Second Am. Compl. ¶ 287). Duke Police Chief Robert Dean notified Dean Wasiolek of the allegations and advised that Mangum "`kept changing her story and was not credible,'" which was a synopsis from Officer Day's report. (Second Am. Compl. ¶ 288). However, Plaintiffs allege that Officer Day's report was subsequently "buried" and that when the existence of the report was later revealed, "Duke Police and Durham Police agreed to misrepresent what transpired on the loading dock of the E.D. and told reporters that Officer Day was `eavesdropping' on Durham Police conversations, and had no place in the investigation." (Second Am. Compl. ¶ 290). Plaintiffs allege that Durham City Manager
Plaintiffs allege that Mangum gave another inconsistent account of events to Investigator Jones at 3:50 a.m., and that over the course of the 11 hours that she was present at DUMC, she never gave a consistent account of events. Plaintiffs also contend that Mangum "revealed a propensity to lie when self-reporting her symptoms with a particular proclivity for reporting pain that did not exist." (Second Am. Compl. ¶ 293). Plaintiffs contend that all of this information was documented in Mangum's charts at DUMC. Plaintiffs further allege that Mangum's Sexual Assault Examination ("SAE" or "Examination") began approximately 6 hours after she arrived at DUMC. Plaintiffs allege that the Sexual Assault Examination Report was signed by Nurse Levicy, but that Levicy did not perform the actual Examination because she was not qualified or authorized to do so under DUMC policy. Instead, the Examination was performed by Dr. Julie Manly, while Levicy observed and filled in the Report form. Plaintiffs allege that by signing the Report even though she did not perform the examination, Levicy "knowingly created a false and misleading medical record in order to create the false impression that DUMC deemed her qualified and competent to collect and interpret forensic medical evidence." (Second Am. Compl. ¶ 299). Plaintiffs allege that Levicy's supervisor, Nurse Arico "knowingly and willfully added credibility to forensic findings that Levicy in fact did not — and could not — make." (Second Am. Compl. ¶ 300). Plaintiffs also allege that although Dr. Manly began the examination, the examination was not completed because Mangum protested and insisted that the examination cease. Plaintiffs allege that during the limited examination that was conducted, Dr. Manly found no injury to Mangum's pelvic region, and "[t]he only notation Manly made was `diffuse edema of the vaginal walls.'" (Second Am. Compl. ¶ 306). Plaintiffs allege that other minor injuries were photographed and included in the Report, specifically a scratch on Mangum's heel and knee, but these injuries can be seen on Mangum's heel and knee in the photographs taken at the party, and therefore pre-dated her arrival at 610 N. Buchanan. Plaintiffs allege that during her time at DUMC, the medical records consistently noted that she was "`in no obvious discomfort,'" even though Mangum reported that her pain was a "`10 out of 10.'" (Second Am. Compl. ¶ 309). At the conclusion of the examination, Mangum was discharged, and the evidence was collected, gathered up, and delivered to Duke Police Officer Joyce Sale.
Plaintiffs allege that the next day, Mangum went to UNC hospital claiming intense pain, reporting that she had been sexually assaulted the night before, and seeking prescription pain medication. However, according to Plaintiffs, Mangum's medical history at UNC revealed a long history of severe psychological disorders and current medication with an anti-psychotic drug, and also noted that she frequently came to UNC clinics for prescription pain medication and she was a "`very high risk'" for narcotic abuse. (Second Am. Compl. ¶ 315). Plaintiffs contend that Mangum gave additional inconsistent accounts of the alleged attack while she was at UNC hospital.
Based on this unfolding of events, Plaintiffs allege that within 48 hours after Mangum's original claim of rape, there was substantial evidence establishing that her
Plaintiffs allege that on March 14, 2006, Durham Police Sergeant Gottlieb learned of the rape allegations. Plaintiffs allege that Gottlieb had a well-known history of targeting Duke Students and of violating the constitutional rights of Duke Students, including by engaging in unlawful searches and seizures and fabricating evidence against Duke Students.
Plaintiffs allege that after assuming control of the investigation, Gottlieb sent an e-mail alert to neighborhood residents on March 15, 2006, informing them that police were "conducting an investigation concerning a rape of a young woman by three males at 610 N. Buchanan," even though Gottlieb knew that everyone who had interacted with Mangum believed she was lying. (Second Am. Compl. ¶ 342-343). Plaintiffs allege that Gottlieb in his e-mail asserted that the attackers were "three males," even though Mangum had given inconsistent accounts, because he knew that 610 N. Buchanan was occupied by three Duke Students. (Second Am. Compl. ¶ 343-344). Plaintiffs allege that the next day, on March 16, 2006, Gottlieb assigned the rape case to Investigator Himan, who had been an investigator for two months and who had never directly worked with a District Attorney before. Plaintiffs allege that this assignment violated Durham Police Department policy, because the investigation should have been conducted by the Criminal Investigation Division's Violent Crimes Unit.
Plaintiffs contend that on March 15, 2006, Dean Wasiolek informed the captains of the lacrosse team that police were investigating allegations of rape alleged to have
Plaintiffs allege that Gottlieb and Himan interviewed Mangum on March 16, and during that interview she gave them purported names and descriptions of her alleged attackers. Mangum identified her alleged attackers as white men, and therefore Devon Sherwood, an African-American team member, was eliminated as a plausible suspect. (Second Am. Compl. ¶ 363). Mangum was presented with photo arrays of team members, including the three Plaintiffs in this case, but Mangum did not identify any of the team members as her "attackers." Mangum was presented with more photo arrays of players a few days later on March 21, but said that she did not recognize any of them. Based on the evidence gathered as of March 21, Plaintiffs allege that Mangum was not credible, and in any event, she had eliminated all of the members of the lacrosse team as plausible suspects.
In addition, Plaintiffs allege that the other dancer, Pittman, spoke with Himan over the telephone on March 20, 2006, and Pittman told Himan that Mangum's claims were "a crock." On March 22, 2006, Gottlieb and Himan commanded Pittman to come to the police station and give them a new, written statement. Plaintiffs allege that Pittman completed a written account that did not allow for enough time in which she was not with Mangum for the alleged sexual assault to have occurred. Plaintiffs allege that Pittman was then served with an outstanding warrant for her arrest on a probation violation that posed a high likelihood of revocation. In response, Pittman wrote an addendum to her statement "which transparently fabricated a window of opportunity for a sexual assault to have occurred." (Second Am. Compl. ¶ 386).
Plaintiffs contend that Gottlieb and Himan "deliberately avoided taking investigative steps that would have produced even more evidence of Plaintiffs' innocence," including failing to interview a neighboring witness who observed Mangum's arrival and departure. (Second Am. Compl. ¶ 387-389). Plaintiffs also contend that Gottlieb and Himan failed to undertake a record check that would have revealed that Mangum had previously made a false report of rape, and failed to investigate Mangum's prior arrest and conviction. Plaintiffs contend that Himan and Gottlieb also failed to confront Mangum with photographs and other contradictory evidence to challenge her claims. Plaintiffs contend
Plaintiffs allege that Duke Police and Duke Officials agreed to "[d]eliver all 47 team members to Gottlieb and Himan, at a designated location, to be interrogated by Durham Police" as part of a conspiracy between Duke and Durham Investigators to "orchestrate the mass interrogation of uncounseled students." (Second Am. Compl. ¶ 402-403). Pursuant to the agreement, on March 21, Plaintiffs were instructed to report to the Durham Police Department the next day, March 22, at 3:00 p.m. Plaintiffs contend that they were advised that they did not need lawyers, and Dean Wasiolek did not revise the advice she had previously given to the team, through the captains, not to tell anyone, even their parents. On the evening of March 21, Plaintiffs' defense counsel spoke with nearly all of the team members, and the team members requested a postponement of the police questioning in order to give them sufficient time to inform their parents of what they were doing.
Plaintiffs contend that Duke and the City then each undertook to retaliate against the team members for that decision to postpone the police questioning. Specifically, Plaintiffs allege that Gottlieb and Himan knowingly made false, sensational assertions in an affidavit that they submitted in support of an application for a "Non-Testimonial Identification Order" ("NTO") and then leaked the NTO and fabricated affidavit to the media in order to subject Plaintiffs to public condemnation. With respect to the affidavit submitted in support of the application for the NTO, Plaintiffs contend that Gottlieb and Himan added fabricated allegations in the affidavit that were attributed to Mangum, but that were false and that did not come from Mangum or any witness, including an allegation that the women were sexually threatened with a broomstick, that the accuser lost several fingernails in the violent struggle, and that team members used each others' names to disguise their `true identity.' Plaintiffs allege that these allegations "came from Gottlieb's brain." (Second Am. Compl. ¶ 418). With regard to the "broomstick," Plaintiffs allege that Gottlieb twisted information "into a complete fabrication." (Second Am. Compl. ¶ 422). With regard to the fingernails, Plaintiffs allege that Mangum never claimed to anyone that she lost fingernails in a struggle. Instead, Plaintiffs allege that Mangum told Gottlieb she had "started affixing and painting her false nails" before the party, and that unpainted fingernails and nail polishing and painting accessories were found in Mangum's purse and in the bathroom at 610 N. Buchanan. (Second Am. Compl. ¶ 424-425). Plaintiffs contend that the false information was provided in the affidavit in support of the NTO application, and in public statements made by Addison as the spokesperson for the Durham Police Department. Plaintiffs contend that the NTO affidavit also falsely claimed that the team members made efforts to conceal their sports affiliation. In addition, Plaintiffs contend that in addition to the fabricated information, the NTO affidavit also failed to reveal that all of the team members had been excluded as plausible suspects based on Mangum's physical descriptions and inability to identify any alleged attacker in the photo arrays.
Plaintiffs allege that Duke Chairman Steel was aware that Mangum's accusations were false and that Gottlieb "was on a vendetta" and that Addison was "lying publicly about the evidence," but that Steel determined that it would be "`best for Duke' if Plaintiffs were tried and convicted on Mangum's false accusations." (Second Am. Compl. ¶ 445-53). Plaintiffs contend that Steel, acting through Brodhead, Trask, Burness, and Graves, directed the Duke Police Department to conceal evidence
Plaintiffs further allege that on March 27, 2006, Duke Police supervisors instructed Duke Police Officers who interacted with or observed Mangum on March 14 to provide Nifong with "bystander witness statements" that "deliberately concealed their exculpatory observations of Mangum during the early morning hours of March 14th" and "[r]eveal[ed] observations of Mangum's behavior only to the extent that the observations tended to enhance the reliability of Mangum's claim." (Second Am. Compl. ¶ 466-467). In addition, Plaintiffs allege that these statements "disavow[ed] any role whatsoever in an investigative capacity" and "[c]onceal[ed] the fact that the investigation was a Duke Police investigation, until Duke abdicated its jurisdictional responsibility." (Second Am. Compl. ¶ 466-467). With respect to these contentions, Plaintiffs set out specific allegations regarding the reports of Duke Police Officers Mazurek and Falcon. (Second Am. Compl. ¶ 468-472). In addition, Plaintiffs note that Duke Police Officer Day had prepared a report on March 14 that included much of the exculpatory evidence. However, Plaintiffs allege that Officer Day's original report was not submitted with the "bystander" statements, and that Duke Police instead submitted a "continuation report" that Duke Police supervisors directed Officer Day to write to "deliberately impeach" his own prior report. (Second Am. Compl. ¶ 474-475).
With respect to District Attorney Nifong, Plaintiffs allege that Nifong took over the investigation on March 24, 2006, in order to help him win the upcoming election for District Attorney. (Second Am. Compl. ¶ 478-485). Plaintiffs allege that Nifong intended to use the media interest in the case, generated by the allegations in the NTO affidavit, to aid in his election campaign. Plaintiffs allege that Nifong contacted Durham Police Captain Lamb on March 24, as Plaintiffs were arriving at the Forensics Unit pursuant to the NTO, and Lamb agreed to "delegate to Nifong his official policymaking authority over the investigation. Lamb then instructed Gottlieb, Himan, and Ripberger to conduct the investigation only in the manner Nifong directs." (Second Am. Compl. ¶ 487). Plaintiffs contend that Nifong used the Plaintiffs' "non-citizen status" to "galvanize public condemnation of the Plaintiffs." (Second Am. Compl. ¶ 490). Plaintiffs also allege that Nifong began making statements to media representatives regarding the charges, without any factual basis, in order to generate media coverage to assist him in his campaign.
Plaintiffs contend that in retaliation for their assertion of their First, Fifth, and Fourteenth Amendment rights, the Duke Defendants, Nifong, and the Durham Police Spokesperson Defendants (Addison and Michael) agreed to participate in a media campaign to publicly vilify Plaintiffs and their teammates by falsely asserting that a rape had occurred, that the perpetrators were team members, that all members of the team were involved as principals or accomplices, and that all members of the team were "stonewalling" the police investigation. (Second Am. Compl. ¶ 501). Plaintiffs allege that as part of these media campaign, Nifong made multiple public statements, including false statements that were "not-for-attribution," as set out in the Second Amended Complaint. (Second Am. Compl. ¶ 501-503, 590). Plaintiffs allege that Durham Police Spokesperson Addison also made numerous false public statements designed to stigmatize Plaintiffs, as set out in the Second Amended Complaint, including in an e-mail flyer. (Second Am. Compl. ¶ 504-517). Plaintiffs contend that the e-mail flyer falsely described the alleged assault as an established fact and stated that the "[t]he victim was sodomized, raped, assaulted and robbed," even though Plaintiffs contend that Duke Police knew that there was no evidence of sexual assault. (Second Am. Compl. ¶ 507). Plaintiffs contend that Addison acted with malice, and that all of his statements were made in direct violation of Durham Police Department Orders and Operating Procedures. Plaintiffs contend that Durham supervisors Baker, Chalmers, Russ, and Hodge had final policymaking authority for the City and failed to remedy Addison's conduct. (Second Am. Compl. ¶ 514-517). Plaintiffs also allege that under Commander Lamb's direction, Durham Police and Duke University personnel created a "Wanted" poster using the Plaintiffs' photographs, that was then disseminated across campus by "Duke University personnel at the direction of Duke University officials, and across the city of Durham at the direction of City of Durham officials by City of Durham personnel." Plaintiffs contend both that the creation and dissemination was directed by Duke and City officials with "final policymaking authority," and that Duke and City officials failed to correct the conduct or prevent the violations of Plaintiffs' rights. (Second Am. Compl. ¶ 521-524). Plaintiffs contend that the publication of the "Wanted" poster was pursuant to a Duke Police and Durham Police policy to create a "poster" and e-mail alert whenever a potentially high-profile crime was reported within the Duke Police Department's jurisdiction. (Second Am. Compl. ¶ 525-527).
Plaintiffs allege that Duke officials also publicly stigmatized Plaintiffs, including in statements made by University Spokesperson Burness in which Burness stated ("not-for-attribution") that what had actually happened was far worse than what was being reported and that everyone on the team was involved. (Second Am. Compl. ¶ 529-533). Plaintiffs contend that
Plaintiffs allege that Duke faculty members organized a "candlelight vigil" to be held on the lawn of 610 N. Buchanan, which "transformed into a `Wake-up Call' held by largely the same protestors, who surrounded 610 N. Buchanan, banged pots and pans, and shouted at the residents to come out and confess." (Second Am. Compl. ¶ 544-548). Plaintiffs allege that the protesters included members of the Duke faculty and administration, and that the Duke Police did not intervene. (Second Am. Compl. ¶ 549-551). Plaintiffs also allege that during a class in which they were present, a Duke professor began the lecture by stating that "`[i]t is a fact' that a rape occurred in the lacrosse house" and that "team members are covering up for their teammates," and Plaintiffs further allege that they were also presumed guilty by clergy members giving a homily at Duke Chapel. (Second Am. Compl. ¶ 552-554). Plaintiffs contend that Duke University officials failed to correct, discipline, or otherwise respond to "their employees who participated in the public stigmatization of the Plaintiffs." (Second Am. Compl. ¶ 558).
Plaintiffs contend that "Nifong, Michael, Addison, Lamb, Michael, Hodge, and Baker, individually and in concert, fabricated and released to the public false evidence that Plaintiffs were racists and that there was a `deep racial motivation' for the sexual assault they knew did not happen." (Second Am. Compl. ¶ 566). As part of this contention, Plaintiffs allege that Defendant Soukup delegated his final policymaking authority to Hodge, Addison, and Michael, and that pursuant to that authority, they deleted or destroyed the audio recordings from the early hours of March 14 because the recordings contained the exculpatory, contemporaneous reports of Sgt. Shelton and other officers attending to Mangum. Plaintiffs allege that Soukup approved and ratified this conduct. Plaintiffs further allege that while concealing and destroying those recordings, Durham Police Officer Michael "disseminated and then knowingly misrepresented the source and credibility of Pittman's 911 call reporting a racial slur at 610 N. Buchanan." (Second Am. Compl. ¶ 570). Plaintiffs contend that although Durham Police knew the call was from Pittman, they released the call as that of an "unknown, anonymous" caller who was "fearful of a racist mob spilling out of the residence at 610 N. Buchanan earlier in the evening." (Second Am. Compl. ¶ 573). Plaintiffs allege that Nifong and Durham Police Officer Michael continued to falsely insist that they had not identified the caller, even though Pittman had told Sgt. Shelton and Himan and Gottlieb that she was the one who made the call. Plaintiffs contend that Nifong also made additional public statements focusing on the "racist dimension" of the allegations. (Second Am. Compl. ¶ 575). Plaintiffs contend that following release of the 911 call, Brodhead made a statement denouncing "racism and its hateful language," and Duke faculty members and clergy also responding to the "racist dimension"
Plaintiffs contend that on March 27, Nifong met with Gottlieb and Himan to review the evidence and realized they did not have evidence to counterbalance the contradictions in Mangum's story. Plaintiffs allege that Nifong nevertheless continued with the investigation because "he was already committed" based on his statements to the press. (Second Am. Compl. ¶ 593). Nifong instructed Gottlieb and Himan to obtain copies of the e-mails sent by the team members after the party. Plaintiffs allege that "Gottlieb obtained an email written by Ryan McFadyen" and "[w]ithin 10 minutes" Gottlieb and Himan were back in Nifong's office "with a copy of an email exchange that contained [McFadyen]'s email parody of American Psycho." (Second Am. Compl. ¶ 594). Plaintiffs allege that Gottlieb, Himan, and Nifong discussed the fact that Mangum "did not identify or even recognize [McFadyen] in the March 16th Identification Procedure" but Nifong nevertheless instructed Himan and Gottlieb to obtain a warrant to search McFadyen's room. (Second Am. Compl. ¶ 595). Plaintiffs allege that "[t]he point of obtaining the search warrant was not to search for evidence; it was to place [McFadyen]'s email in a public document, stripped of the reply emails that reveal that [McFadyen]'s email is a parody." (Second Am. Compl. ¶ 595). Plaintiffs contend that as part of the search warrant application, Nifong, Himan, and Gottlieb revised their prior NTO affidavit to include the text of McFadyen's e-mail, with the intent that McFadyen and the other team members would be vilified when the affidavit was provided to the media. Plaintiffs allege that Nifong, Gottlieb, and Himan agreed to falsely include in the warrant application's Description of Crimes "the assertion that police are investigating a `Conspiracy to Commit Murder,' with strippers as the putative victims." (Second Am. Compl. ¶ 605). Plaintiffs also allege that Nifong, Gottlieb and Himan "added to the list of `items to be seized' Mangum's white shoe, described as `Property belonging to a 27 y/o B/F victim to include but not limited to a white 6 inch shoe'" even though the investigators had already found and seized that shoe over a week earlier. (Second Am. Compl. ¶ 606). Plaintiffs contend that in the affidavit, Gottlieb and Himan added the false allegation that "further interviews showed" that the players "also used numbers when calling for one another across the room again to hide their identities," but that no witness had told Gottlieb and Himan this and it was another fabrication. (Second Am. Compl. ¶ 609). Plaintiffs allege that Gottlieb, Himan, and Nifong proceeded with the warrant application with a malicious, evil motive and without probable cause. Nifong, Gottlieb, and Himan obtained the search warrant, but the state court judge sealed the warrant application. Plaintiffs contend that "sealing the warrant frustrated its only purpose" and that in executing the warrant, Gottlieb was "in a rage" and destroyed furniture. (Second Am. Compl. ¶ 612-613). Plaintiffs allege that Duke Police Sgt. Smith stood by while Himan and Gottlieb conducted the search. Plaintiffs allege that "[w]hile there, he indicated that he knew the warrant was not supported by probable cause or reasonable suspicion." (Second Am. Compl. ¶ 614). Plaintiffs contend that Sgt. Smith was aware that Gottlieb and Himan had falsified the material allegations in the Warrant Affidavit and that there was no probable cause to believe the crimes alleged had been committed, but "`turned a blind eye'" to the violations of McFadyen's constitutional rights
Plaintiffs allege that on March 27 and 28, the State Bureau of Investigation advised both Nifong and Himan that they had completed the serology tests on the rape kit items and that there was no semen, blood, or saliva on any of them, and that as a result, no further DNA testing would be performed. Plaintiffs allege that in response, Himan and Nifong sent swabs of a four-foot area of the bathroom floor and a towel collected during the search of 610 N. Buchanan. Plaintiffs allege that Himan informed Nifong and the Durham Police supervisors that the SBI lab tests would produce no DNA match. Plaintiffs further allege that Himan spoke with Mangum about the case and about the negative DNA test results. Plaintiffs contend that prior to this time, Nifong had taken the public position that the DNA tests would "`reveal who the attackers were.'" (Second Am. Compl. ¶ 626).
On March 29, 2006, a meeting was held between Duke and City officials, including Nifong, Baker, Hodge, Russ, Graves, and Dean. Gottlieb and Himan came to report on the status of the evidence in the investigation. Plaintiffs allege that Gottlieb and Himan failed to take notes or preserve their timeline of the investigation that they prepared for Baker. However, Plaintiffs allege that Nifong, Gottlieb, and Himan reported at the meeting the SBI test results and that they had "no suspects and no evidence that a rape occurred." (Second Am. Compl. ¶ 631). Plaintiffs contend that after the meeting, the Duke Crisis Management Team (Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, and Haltom), Duke Police supervisors (Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, and Best) and Durham Police supervisors (Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Soukup) "all were aware of and willfully blind and/or deliberately indifferent to the repeated and ongoing violations of Plaintiffs' constitutional rights" by Nifong, Himan, Addison, and Michael, and also "willfully refused or failed to acknowledge, receive or seize the overwhelming evidence of innocence that had been amassed in the case." (Second Am. Compl. ¶ 633). Plaintiffs further allege that the Duke and City officials, acting with deliberate indifference to Plaintiffs' constitutional rights, and knowing that the Plaintiffs were innocent, directed Nifong and Himan to "act swiftly to charge, prosecute, and convict Plaintiffs and/or their teammates." (Second Am. Compl. ¶ 634). Plaintiffs contend that "[a]ll appearances of a legitimate investigation were abandoned, and replaced by a conspiracy whose final object was to prosecute and convict Plaintiffs and/or their teammates in the absence of probable cause, reasonable suspicion, or factual possibility for that matter, in violation of Plaintiffs' constitutional rights," by stigmatizing Plaintiffs for the purpose of depriving them of a fair and impartial jury, concealing exculpatory evidence, manufacturing inculpatory evidence, abusing legal process, invading Plaintiffs' financial and educational records, and engaging in "an overarching conspiracy not to intervene among all Defendants who had the power to prevent the wrongs they knew were conspired to be done to Plaintiffs over the course of the next year." (Second Am. Compl. ¶ 639-640).
As the basis for these contentions, Plaintiffs allege first that they were entitled to the SBI report of the test results by March 31, and that Nifong refused to provide the exculpatory report to Plaintiffs for two weeks. Plaintiffs further allege that
Plaintiffs contend that Nifong was also determined to manufacture inculpatory evidence by directing Gottlieb and Himan to prepare another photo identification procedure and "tell Mangum she would see pictures of people they believe were present at the party, and have her pick three." (Second Am. Compl. ¶ 663). Mangum came to the police station on April 4 and was shown a PowerPoint presentation of photos of every Caucasian member of the lacrosse team, using photos obtained as a result of the NTO. Plaintiffs allege that this identification procedure "violated nearly all of the Department's safeguards against negligent and malicious misidentification codified in Durham Police Department's" policies, because it was administered by Gottlieb, who provided feedback during the process, and because it did not include true fillers and Mangum was told that the photos were a collection of the individuals police believed were at the party. (Second Am. Compl. ¶ 667-668). Plaintiffs also allege that Mangum was shown pictures from the party that were in the possession of Durham Police prior to the April 4 identification procedure, which enabled her to identify and describe individuals who were at the party that she previously had not recognized or identified. (Second Am. Compl. ¶ 669-675, 678). Plaintiffs contend that Nifong and Gottlieb were required to provide them with a written report of the April 4 procedure since it was conducted with all of the team members' photographs, but failed to do so and deliberately concealed from Plaintiffs' defense counsel the fact that the identification procedure had been conducted. Plaintiffs contend that in doing so, Gottlieb and Himan were violating the NTO processes, were concealing exculpatory evidence, and were foreclosing Plaintiffs' opportunity to petition the Court to be called as witnesses before the Grand Jury. (Second Am. Compl. ¶ 677-686). Plaintiffs contend that the fact that Mangum had previously failed to identify any team members in the two prior identification procedures was deliberately excluded from the NTO application, the search warrant for McFadyen's room, and from the Investigation Timeline prepared by Gottlieb for the City Council. (Second Am. Compl. ¶ 676).
Plaintiffs allege that on April 5, Nifong filed an ex parte motion and obtained an order directing additional DNA testing of certain items by DNA Security, Inc. In the ex parte motion, Nifong revealed that the SBI's DNA test was completed and the results showed no link to any team member, but that information was not revealed to Plaintiffs or their defense counsel. (Second Am. Compl. ¶ 688-692). Plaintiffs further allege that on that same day, the search warrant application for McFadyen's room was unsealed, making it a public record that was picked up by the media. Plaintiffs allege that in response, Defendants Moneta, Bryan, and Wasiolek unilaterally suspended McFadyen as a student without notice, hearing, or inquiry. (Second Am. Compl. ¶ 693-696). Plaintiffs allege that Dean Wasiolek demanded that McFadyen waive his rights under FERPA, and that Duke officials, including Defendant Brodhead, then began giving interviews
Plaintiffs allege that Matthew Wilson ("M. Wilson") was also subject to disciplinary sanctions when it was reported that he had pled guilty to a charge of Driving While Impaired in May 2006, even though the incident was during the summer outside of Durham County and was not connected with Duke. Plaintiffs allege that Duke unilaterally suspended M. Wilson from the lacrosse team indefinitely and made statements to the press to "ensure the University's disciplinary action against Matthew [Wilson] was widely known." (Second Am. Compl. ¶ 713). Plaintiffs further allege that in response to the citation, Defendant Bryan referred him for a Judicial Board hearing, and falsely informed him that it was "policy" to suspend for two semesters any student who was charged, on campus or off, with a Driving While Impaired offense. Plaintiffs allege that Duke officials refused to allow M. Wilson to transfer to another school as a student in good standing, even though other students had been allowed to transfer as students in good standing in lieu of being suspended. At the Judicial Board hearing, M. Wilson was questioned about the events of March 13-14 and was suspended for two semesters, which was modified to one semester on appeal. Plaintiffs allege that the Judicial Board proceeding violated the Student Code of Conduct, which "clearly does not authorize the Undergraduate Judicial Board to subject students to disciplinary proceedings for conduct that occurs off-campus, out of county, while not enrolled in University courses." (Second Am. Compl. ¶ 720). Plaintiffs also allege that Breck Archer was subject to a disciplinary proceeding in the summer of 2005 for damage to a room he had not yet moved into, and then was suspended for the fall 2005 semester for failing to submit a form after he had completed his community service hours. Plaintiffs allege that this disciplinary proceeding was without basis in the Student Code of Conduct.
As to all of the disciplinary measures, Plaintiffs allege that the Student Code of Conduct is incorporated in the Duke Student Bulletin, which provides disciplinary procedures and safeguards. Plaintiffs allege that during the disciplinary proceedings, Duke failed to provide the procedural and substantive protections provided in the Student Bulletin. As to McFadyen, Plaintiffs contend that the interim suspension did not meet the standard set out in the Bulletin, that McFadyen did not receive notice of the provision he was charged with violating, that he did not receive a hearing within 3 days or an informal review by a 3-person committee as provided in the Bulletin, and that he was not provided with the procedural safeguards set out in the Bulletin. With respect to M. Wilson, Plaintiffs allege that the Bulletin expressly limited its jurisdictional authority to exclude off-campus conduct except in limited circumstances not applicable to him. In addition, Plaintiffs allege that the proceedings against M. Wilson were "predetermined" and violated his right to a fair hearing under the Bulletin. Finally as to Archer, Plaintiffs allege that Duke's "suspension of Archer was unprecedented and remains inexplicable by reason and common
Plaintiffs allege that on April 6, certain items were transferred from the SBI to DSI for DNA testing, pursuant to the order Nifong had obtained the day before. The results of DSI's testing were provided on April 10 to Gottlieb, Himan, and Wilson and "revealed the existence of DNA characteristics from up to four different males" and excluded Plaintiffs and all of the team members as potential contributors of the DNA. (Second Am. Compl. ¶ 747-748). Plaintiffs allege that Nifong nevertheless delayed release of this information by directing Gottlieb and Himan to send more evidence for testing, even though it was not covered by the order authorizing certain testing by DSI. Plaintiffs also allege that Meehan, the DSI lab director, offered to prepare a report, but Nifong declined because he did not want to have to provide the report to defense counsel, and Meehan acquiesced in Nifong's wish. (Second Am. Compl. ¶ 802). Plaintiffs further allege that Nifong, Gottlieb, and Himan met with Meehan and DSI's president, Defendant Clark, on April 21 and May 12, and that during the May 12 meeting, they agreed to conceal DSI's findings and prepare a final report that did not contain the entirety of DSI's finding. Plaintiffs allege that they were entitled to a written report of every test conducted by DSI with their DNA samples that were provided pursuant to the NTO, and that Nifong, Gottlieb, and Himan did not ever provide them with a complete report. Plaintiffs further allege that the report included a "non-probative" crime scene fingernail even though "Crystal Mangum did not contribute to any DNA found on the fingernail" and that it was included in the report "solely for purposes of intimidating a material and critical witness." (Second Am. Compl. ¶ 769-771). Finally, Plaintiffs allege that after agreeing to the preparation of a misleading report, Nifong continued to tell the media that the DNA results would "favor Mangum's allegations," and sources in Nifong's office provided false information to the media indicating that there was a DNA match with an individual Mangum had identified with 90% certainty. (Second Am. Compl. ¶ 773-775).
Plaintiffs allege that during the investigation, Nifong repeatedly stated that there was medical evidence of an assault. Plaintiffs allege that the "falsified sections" of the NTO application included a claim by Gottlieb that "[m]edical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience." (Second Am. Compl. ¶ 781). Plaintiffs allege that after Nifong made repeated public statements claiming that he believed a rape had occurred based on the medical evidence, Nurse Levicy's supervisor, Theresa Arico, gave an interview in which she references "blunt force trauma" and examination with a coloposcope, and concluding that "I can reasonably say these injuries are consistent with the story she told." (Second Am. Compl. ¶ 784). Plaintiffs allege, however, that significant portions of the Sexual Assault Examination Report ("SAER") were not produced until April 5, several weeks after the March 21 subpoena and subsequent production of medical records. Plaintiffs allege that in that intervening time between March 21 and April 5, "Levicy re-created those portions of the SAER that were not completed on March 14th after the [examination] was abandoned." (Second Am. Compl. ¶ 785). Plaintiffs allege that the information
Plaintiffs allege that the next day, after Levicy submitted the SAER with her revisions, Mangum gave a written statement that was "remarkably consistent" with the interview transcript that Levicy had just provided. Plaintiffs allege that "[t]he falsifications in the SAER were plainly designed to conceal the fact that Mangum did not report any of the detail that appeared in Gottlieb's application" for the NTO and "were designed to corroborate the sensationalized version of Mangum's account that Gottlieb falsely reported in his factual sections of the application" for the NTO. (Second Am. Compl. ¶ 785-786).
Plaintiffs allege that Levicy subsequently met with Nifong, Gottlieb, Himan, and Wilson and "repeatedly proffered false testimony that was clearly designed to fill the chasms in Mangum's case and/or to restore Mangum's glaring credibility problems." (Second Am. Compl. ¶ 788). Plaintiffs allege that Levicy agreed with Nifong, Gottlieb, Himan, and Wilson that she would testify to forensic medical evidence that she did not observe and did not exist. Plaintiffs also allege that Levicy "fabricated a forensic medical observation that the [examination] revealed evidence of penetrating blunt force trauma." (Second Am. Compl. ¶ 790). Plaintiffs allege that Levicy's supervisor, Arico, "had already echoed publicly support for this false claim," even though there was no evidence of blunt force trauma. (Second Am. Compl. ¶ 790). Plaintiffs further allege that after the results of the DNA testing established no match with any lacrosse team member, Nifong claimed publicly that he believed condoms were used, and "[k]nowing this, on January 10, 2007, Levicy proffered additional fraudulent testimony that the absence of DNA could be explained by the use of condoms" even though the examination report noted repeatedly that condoms were not used. (Second Am. Compl. ¶ 794-796). Finally, Plaintiffs allege that while the evidence established that Mangum was incoherent and potentially suffering from a "psychotic delusion" on March 14, Levicy proffered new testimony claiming Mangum "could always speak articulately" and was "very alert." (Second Am. Compl. ¶ 797). However, Plaintiffs allege that a few days later, after Nifong withdrew from the case, Levicy attempted a "clarification" and "stated that she now believed that the absence of any DNA matching a member of the lacrosse team could be explained by the fact that the rape `didn't happen.'" (Second Am. Compl. ¶ 799).
Plaintiffs allege that on April 14, Nifong was proceeding to indict two team members, Reade Seligmann and Collin Finnerty, although Gottlieb and Himan knew that they had very little evidence, if any, that either of them was even present at the party at the relevant time. Plaintiffs allege that Gottlieb and Himan therefore "colluded with Duke Police officers to compel several team members to provide the information necessary to place Collin and Reade at 610 N." Buchanan at some point on March 13th if not March 14th. Plaintiffs allege that this included sending an e-mail on April 13 through Breck Archer's "duke.edu" e-mail account that Archer did not send or authorize, which stated "I am going to the police tomorrow to tell them everything that I know." (Second Am. Compl. ¶ 818-819). In addition, Plaintiffs allege that on the evening of April 13, Duke Police officers assisted Himan and Gottlieb in gaining access to the dorm building where most of the sophomore team members lived. Plaintiffs allege that Gottlieb and Himan "cornered team members in their dorms" and asked "who was (and was not) present at the party." (Second Am. Compl. ¶ 821). Plaintiffs allege that they "cornered Michael Young [who is not a Plaintiff in this case], and coaxed him into his room" and questioned him regarding who was at the party. (Second Am. Compl. ¶ 822). Plaintiffs allege that Duke Police "facilitated Himan's and Gottlieb's entry into one of the dorms, and then left them there to sneak into other dorm buildings." (Second Am. Compl. ¶ 823).
Plaintiffs allege that on April 5, their season was cancelled, their coach resigned, and President Brodhead announced the formation of an "Ad Hoc" committee to investigate the Plaintiffs' and their teammates' past in search of prior bad acts by the lacrosse team. Plaintiffs allege that the Committee was given only three weeks so that its report "could be presented in a nationally televised press conference prior to the primary, in order to assure Nifong's election and the continuation of the case to trial and convictions." (Second Am. Compl. ¶ 833). Plaintiffs allege that "[i]n the absence of evidence of misconduct, the Chairman directed the manufacture of evidence that would." (Second Am. Compl. ¶ 837). Plaintiffs allege that Defendants Moneta and Bryan "provided false and misleading statistics and a body of misleading data for the Committee to use." (Second Am. Compl. ¶ 838-844). Plaintiffs allege that the Committee reached the "preordained public conclusion" announced the day before the election, that there was a "pattern" of "deplorable" conduct by lacrosse team members, and "ratified the premises of Gottlieb's sensationalized application" for the NTO. (Second Am. Compl. ¶ 838, 847, 849). Plaintiffs allege that Defendant Burness "delivered an advance copy" of the report to the City so they could "prepare statements for the press conferences" but did not provide a copy to Plaintiffs or their teammates. (Second Am. Compl. ¶ 851).
Plaintiffs allege that Duke employees, at Steel's direction, accessed Plaintiffs' "federally protected financial records and produced to Durham Police complete, unredacted reports of all activity in Plaintiffs'
Plaintiffs also allege that they and their teammates undertook to register voters for the November 2006 election, but the Duke "Crisis Management Team" Defendants (Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, and Haltom) directed Duke officials to force Plaintiffs and their teammates to shut down the registration efforts. Plaintiffs allege that other student groups were allowed to set up voter registration tables on campus, but they were denied the right to set up a table at the stadium during the Homecoming Game. Plaintiffs allege that in response, they decided to continue registration as they had in the past by offering the opportunity to register to vote to passers-by on campus, without a table or centralized location. However, after the students began walking on campus with their voter registration materials, wearing "Voice Your Choice" t-shirts, they were stopped by Administrators and Duke Police officers and were ordered to cease and desist the registration. Plaintiffs allege that the students were required to take off their shirts or turn them inside out. Plaintiffs allege that according to the agents who stopped them, "the decision to shut down the registration effort was made at the `highest levels' of the University's governing structure." (Second Am. Compl. ¶ 886). Plaintiffs further allege that Defendant Burness made public statements falsifying the results of an investigation into the incident. (Second Am. Compl. ¶ 888).
Plaintiffs allege that Duke and the City conducted internal investigations of their handling of all of these events, and found no wrongdoing, thus condoning and ratifying the violations of Plaintiffs' rights. (Second Am. Compl. ¶ 890). Plaintiffs allege that Defendant Burness continued to make public statements that "falsely accused the Plaintiffs and their teammates of habitual, gross misconduct over the course of years." (Second Am. Compl. ¶ 894). However, Plaintiffs allege that the State Attorney General subsequently "condemned Nifong and his coconspirators
In the present suit, Plaintiffs now assert the following claims: Count 1: Search and Seizure in Violation of 42 U.S.C. § 1983 and Conspiracy; Count 2: Search and Seizure in Violation of 42 U.S.C. § 1983 and Conspiracy; Count 3: Abuse of Process and Conspiracy in Violation of 42 U.S.C. § 1983; Count 4: Deprivation of Property in Violation of 42 U.S.C. § 1983; Count 5: False Public Statements in Violation of 42 U.S.C. § 1983; Count 6: Manufacture of False Inculpatory Evidence and Conspiracy in Violation of 42 U.S.C. § 1983; Count 7: Concealment of Exculpatory Evidence and Conspiracy in Violation of 42 U.S.C. § 1983; Count 8: Interfering with Right to Engage in Political Processes in Violation of 42 U.S.C. § 1983 and Conspiracy; Count 9: Retaliation in Violation of 42 U.S.C. § 1983 and Conspiracy; Count 10: Deprivation of the Privileges and Immunities of North Carolina Citizens in Violation of 42 U.S.C. § 1983; Count 11: Failure to Prevent Deprivation of Constitutional Rights in Violation of 42 U.S.C. § 1983; Count 12: Monell Liability for Violations of 42 U.S.C. § 1983; Count 13: Supervisory Liability for Violations of 42 U.S.C. § 1983; Count 14: Failure to Train in Violation of 42 U.S.C. § 1983; Count 15: Conspiracy in Violation of 42 U.S.C. § 1983; Count 16: Conspiracy in Violation of 42 U.S.C. § 1985; Count 17: Failure to Intervene in Violation of 42 U.S.C. § 1986; Count 18: Common Law Obstruction of Justice and Conspiracy; Count 19: Common Law Abuse of Process and Conspiracy; Count 20: Intentional Infliction of Emotional Distress and Conspiracy; Count 21: Breach of Contract; Count 22: Invasion of Privacy; Count 23: Breach of Fiduciary Duty and Aiding and Abetting; Count 24: Fraud; Count 25: Negligence (Durham Police); Count 26: Negligent Hiring, Retention, Supervision, Training and Discipline (Durham Police); Count 27: Negligent Infliction of Emotional Distress (Durham Police); Count 28: Negligent Infliction of Emotional Distress; Count 29: Negligence (Duke Police); Count 30: Negligence (Duke); Count 31: Negligence (SANE); Count 32: Negligent Hiring, Retention, Supervision, Training and Discipline (SANE); Count 33: Negligent Infliction of Emotional Distress (SANE); Count 34: Negligence (DSI); Count 35: Negligent Supervision, Hiring, Training, Discipline, and Retention (DSI); Count 36: Negligent Infliction of Emotional Distress (DSI); Count 37: Negligence (Duke Police); Count 38: Negligent Supervision (Duke Police); Count 39: Negligent Infliction of Emotional Distress (Duke Police); Count 40: Negligent Entrustment (Duke Police); Count 41: Violations of Article I and Article IX of the North Carolina Constitution and Conspiracy. In considering these various Motions to Dismiss, the Court will first outline the applicable legal standard for considering motions to dismiss, and will then apply that standard to analyze each of the 41 claims raised by Plaintiffs in this case.
In reviewing a Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Fourth Circuit has directed that "[w]e `take the facts in the light most favorable to the plaintiff,' but `we need not accept the legal conclusions drawn from
Second, the Iqbal Court noted that "only a complaint that states a plausible claim for relief survives a motion to dismiss," and therefore courts must determine whether the facts actually pled in the complaint show that the pleader is entitled to relief. Id. Thus, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 1949 (internal citations omitted). Thus, dismissal of a complaint is proper where plaintiffs' factual allegations fail to "produce an inference of liability strong enough to nudge the plaintiff's claims `across the line from conceivable to plausible.'" Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.2009) (citing Iqbal, 129 S.Ct. at 1952 (internal quotation omitted)).
In considering claims that are asserted under state law, the Court "must rule as the North Carolina courts would, treating decisions of the Supreme Court of North Carolina as binding, and `departing from an intermediate court's fully reasoned holding as to state law only if `convinced' that the state's highest court would not follow that holding.'" Iodice v. United States, 289 F.3d 270, 275 (4th Cir.2002). However, pleading standards are a matter of procedural law governed in this Court by federal, not state, law. See Jackson v. Mecklenburg County, N.C., No. 3:07-cv-218, 2008 WL 2982468, at *2 (W.D.N.C. July 30, 2008) ("North Carolina substantive law applies to the elements of Plaintiffs' state law claims but the Federal Rules of Civil Procedure govern procedural
In analyzing the various Motions to Dismiss, the Court will consider each of Plaintiffs' alleged claims to determine whether Plaintiffs have stated a claim under the standards outlined above and under the applicable state and federal law.
Count 1 is a claim asserted under 42 U.S.C. § 1983, which prohibits any person, acting under color of state law, from depriving an individual of their rights secured under the Constitution and laws of the United States. Plaintiffs assert the § 1983 claim in Count 1 for alleged violations of Plaintiffs' Fourth and Fourteenth Amendment constitutional rights in connection with the Nontestimonial Order ("NTO"). Plaintiffs allege that the NTO "compelled the Plaintiffs to surrender themselves to the Durham Police and submit to cheek swabbings to obtain DNA samples, to submit to `mug shot' photographing of their fact, and to disrobe for
"`The Fourth Amendment [applicable to the states through the Fourteenth Amendment] prohibits law enforcement officers from making unreasonable seizures, and seizure of an individual effected without probable cause is unreasonable.'" Miller v. Prince George's County, 475 F.3d 621, 627 (4th Cir.2007) (quoting Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.1996)). Moreover, when police officers effect a "seizure" of a person pursuant to a warrant, the officers are still liable for violations of the Fourth Amendment if the officers "intentionally lie in warrant affidavits, or recklessly include or exclude material information known to them." Id. at 630 (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2675, 57 L.Ed.2d 667 (1978) (holding that a defendant in a criminal proceeding may raise a constitutional challenge to searches conducted pursuant to a warrant if "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" and if the offending information was essential to the probable cause determination)). Thus, "[a]n investigation need not be perfect, but an officer who intentionally or recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution unless the untainted facts themselves provide probable cause." Id. at 630-31; Brooks v. City of Winston-Salem,
In this case, Plaintiffs allege that they were unconstitutionally seized when they were required to appear and surrender themselves at the Durham Police station, and submit to cheek swabbings to obtain DNA samples, `mug shot' photographing, and "disrob[ing] for purposes of close physical inspection and photographing of their bodies" pursuant to the NTO. (Second Am. Compl. ¶ 908). The NTO was issued pursuant to North Carolina General Statute § 15A-271 to § 15A-282. Under these statutes, an NTO may be issued by a judge upon an affidavit sworn to before the judge establishing "[t]hat there is `probable cause' to believe that a felony offense... has been committed[,] that there are `reasonable grounds' to suspect that the person named or described in the affidavit committed the offense[,] and that the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense." N.C. Gen.Stat. § 15A-273. An NTO includes "identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, ... photographs, and lineups or similar identification procedures requiring the presence of a suspect." N.C. Gen. Stat. § 15A-271.
In their Motions to Dismiss, Defendants contend that this NTO process itself authorizes a search and seizure of citizens on "reasonable suspicion" rather than "probable cause" and that such a showing is sufficient under the Fourth Amendment. Defendants further contend that the NTO in the present case was issued by a state magistrate judge upon a finding of "probable cause" to believe that a felony offense had been committed and "reasonable grounds" to suspect that the individuals named in the affidavit committed the offense, and that this Court should defer to the magistrate judge's finding. See Simmons v. Poe, 47 F.3d 1370, 1378 (4th Cir.1995). In addition, Defendants contend that the affidavit for the NTO would support a finding of probable cause, even if the challenged evidence is not considered. Id. ("[E]ven if an affidavit supporting a search warrant is based in part on some illegal evidence, such inclusion of illegal evidence does not taint the entire warrant if it is otherwise properly supported by probable cause."). Finally, Defendants
For their part, Plaintiffs allege that the NTO procedure under state law is unconstitutional insofar as it could be construed as authorizing searches and seizures, which could include blood samples, urine samples, saliva samples and physical examinations, on a showing of less than full probable cause. Plaintiffs further allege that even if the statute itself is constitutional, the NTO in this case — which effected a search and seizure of all 46 lacrosse team members — violated the Fourth Amendment because it was not supported by probable cause or even by "reasonable grounds." Finally, Plaintiffs contend that the NTO resulted in an unconstitutional seizure because the NTO was issued based on an affidavit that was intentionally false and misleading and that would not have supported issuance of the NTO if the false and misleading information were not considered.
Having considered all of these contentions, the Court concludes that Plaintiffs have adequately alleged a seizure and a search of their person implicating their rights under the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973) (noting that "the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels-the `seizure' of the `person' necessary to bring him into contact with government agents ... and the subsequent search for and seizure of the evidence").
However, this Court need not resolve all of these unsettled issues at this stage in the present case, because even if the procedure and scope of the NTO process would otherwise pass constitutional muster, here Plaintiffs have asserted a claim that the affidavit submitted in support of the NTO application was intentionally and recklessly false and misleading. In response, Defendants raise extensive factual contentions, with factual comparison charts, to dispute these allegations and to demonstrate that probable cause existed even if the allegedly false statements are removed and the material omissions are included. This analysis includes extensive parsing of pieces of the Second Amended Complaint, as well as contentions by Himan as to what information he provided to Nifong, and contentions by Gottlieb and the City as to what information Mangum provided to Gottlieb and Himan during her interviews. However, the analysis suggested by Defendants requires factual analysis beyond the allegations in the Second Amended Complaint, and the cases cited by the Defendants in support of this analysis involve summary judgment determinations, not determinations on a motion to dismiss. Therefore, having considered the parties' contentions in this regard, the Court finds that this parsing of the facts, and certainly any consideration of Defendants' factual contentions in response, is more appropriate at summary judgment after an opportunity for discovery, when the factual record is before the Court for consideration. At this stage in the case, the Court simply concludes that where officers deliberately or recklessly supply false or misleading information to a magistrate judge to support a warrant application, as alleged in the present case, the officers may be liable under § 1983 for violation of an individual's Fourth Amendment rights, if their actions result in the seizure of an individual without probable cause.
However, the Court must still consider whether Plaintiffs have sufficiently stated a claim as to each of the particular Defendants against whom this Count is asserted. In considering this issue, the Court notes that this claim is first asserted against Defendants Himan and Gottlieb. As to these Defendants, Plaintiffs allege that Himan and Gottlieb were directly involved in the intentional and reckless fabrication of evidence that resulted in their seizure pursuant to the NTO, and in the perpetuation of that violation by continued misconduct directed toward the Plaintiffs after the NTO was issued. Based on the factual allegations set out in the Second Amended Complaint, the Court concludes that there are sufficient allegations, if true, to state a plausible § 1983 claim against Defendants Himan and Gottlieb for alleged knowing or reckless presentation of false or misleading evidence that effected a seizure and search of Plaintiffs pursuant to the NTO without probable cause. Of course, Plaintiffs will ultimately be required to present evidence to establish that the Defendants engaged in this alleged conduct, and Defendants will be entitled to present evidence to dispute these allegations. Likewise, Himan and Gottlieb will be entitled to present their qualified immunity defense on a motion for summary judgment, for consideration on the factual record. However, at this stage, as noted above, the Court concludes that at the time of the alleged conduct, it was clearly established that an officer's fabrication of evidence before a magistrate judge to effect a search and seizure of a citizen without probable cause would violate that citizen's constitutional rights. Therefore, the Motions to Dismiss will be denied as to Defendants Gottlieb and Himan.
With respect to Defendants Levicy and Arico, these Defendants contend that they are not liable under § 1983 because they were not acting "under color of state law" and because any alleged constitutional violation was attributable to Nifong, Gottlieb, and Himan. "[T]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (internal citations omitted). Thus "the party charged with the deprivation must be a person who may fairly be said to be a state actor.... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). "`Under th[e state-action or color-of-law] doctrine, we `insist []' as a prerequisite to liability `that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.' By doing so, we maintain the Bill of Rights as a shield that protects private citizens from the excesses of government, rather than a sword that they may use to impose liability upon one
"[P]rivate parties may theoretically be sued under § 1983 using several theories, labeled as `symbiotic relationship; public function; close or joint nexus; joint participation; and pervasive entwinement.'" Id. at 181 n. 6 (citation omitted); see also Jackson v. Pantazes, 810 F.2d 426, 429 (4th Cir.1987) (recognizing potential § 1983 liability "where a private party and a public official act jointly to produce the constitutional injury"). To the extent that a § 1983 claim is based on an alleged "joint participation" or "conspiracy" between private actors and public actors, a bare assertion of a "conspiracy" is insufficient, and a plaintiff must plead enough factual matter to plausibly suggest that an agreement was made to deprive them of their constitutional rights. See Howard v. Food Lion, Inc., 232 F.Supp.2d 585, 597 (M.D.N.C.2002) (holding that in bringing a conspiracy claim under § 1983, the plaintiff "must allege both a mutual understanding to achieve some unconstitutional action reached by the private and state defendants and some factual assertions suggesting a meeting of the minds," and that "[w]hen a complaint contains merely a vague allegation of conspiracy, it cannot withstand a motion to dismiss"); see also Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.2002) ("To be liable as a co-conspirator, a private defendant must share with the public entity the goal of violating a plaintiff's constitutional rights."). Moreover, courts have held that "provision of background information to a police officer does not by itself make [a private actor] a joint participant in state action under Section 1983." Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2nd Cir. 1999) (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983)) ("The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § [] 1983...."); Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir.1978) (granting summary judgment to private defendant on Section 1983 claim because defendant "did [nothing] more than supply information to police officers who then acted on their own initiative in arresting [plaintiff]"); see also Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir.2009); King v. Massarweh, 782 F.2d 825, 828-29 (9th Cir.1986); Arnold v. IBM Corp., 637 F.2d 1350, 1356-57 (9th Cir.1981). Thus, to be acting "under color of state law" based on joint participation, the "private action must have a `sufficiently close nexus' with the state [so] that the private action `may be fairly treated as that of the State itself.'" DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.1999) (citation omitted).
In the present case, Plaintiffs allege generally that Levicy and Arico were acting under color of state law. (Second Am. Compl. ¶ 905). However, a conclusory allegation that an individual or entity was acting "under color of state law" is not sufficient, and Plaintiffs must instead plead specific facts to survive a motion to dismiss. In considering whether Plaintiffs have pled sufficient facts with respect to Levicy, the Court notes that Plaintiffs contend that Levicy participated in the NTO process and in the subsequent "cover-up" of the constitutional violations in the NTO proceeding. Plaintiffs allege that Levicy had several meetings and interviews with Gottlieb, Himan, and Nifong, and that during those meetings she "repeatedly proffered false testimony that was clearly designed to fill the chasms of Mangum's case and/or restore Mangum's glaring credibility problems," and that this included altering forms and evidence as needed to fit the
Having considered these contentions, the Court concludes that Plaintiffs have alleged sufficient facts to state a claim against Levicy for her alleged role in the claimed constitutional violations. Although Levicy was not employed by the City, Plaintiffs' allege that she shared the goal of violating Plaintiffs' constitutional rights, and that she agreed with Nifong, Gottlieb, and Himan to provide the false evidence to them as part of this agreement. These allegations are sufficient to give notice as to how she is alleged to have participated in the conspiracy, and are sufficient to allege action "under color of state law" at this stage in the case. That issue will, however, be subject to further review on a motion for summary judgment to determine whether sufficient evidence exists to support this claim as to Levicy.
However, as to Defendant Arico, Plaintiffs do not allege facts specifically as to Arico to support the conclusion that she entered into an agreement with Gottlieb, Himan, or Nifong to provide false evidence in connection with the NTO and violate Plaintiffs' constitutional rights. The only specific allegation as to Arico is that she gave an interview to a newspaper reporter regarding the sexual assault examination. (Second Am. Compl. ¶ 784). This allegation against Arico is insufficient to state a plausible claim that Arico entered into a conspiracy with Nifong, Gottlieb, and Himan and was acting under color of state law when she gave the interview, or that the interview alone was sufficient to allege joint participation in the alleged violation of Plaintiffs' constitutional rights.
Finally, the Court notes that all of the "official capacity" claims and the claims against the City, Duke, and Duke Health will be considered as part of Count 12, since Plaintiffs must allege a separate basis for imputing liability to these Defendants, and those allegations are made by Plaintiffs as part of Count 12. Therefore, with respect to Count 1, the Court concludes that the Motions to Dismiss will be granted in part and denied in part. Specifically, the Court concludes that Count 1 will go forward as to Defendants Nifong,
In Count 2, Plaintiffs assert a claim under 42 U.S.C. § 1983 for violation of Plaintiff McFadyen's Fourth and Fourteenth Amendment rights in connection with the search of his dorm room on March 27, 2006. Plaintiffs allege that "Gottlieb, Himan and Nifong, Levicy, and Arico acting individually and in concert, initiated legal process directed at McFadyen in the form of a Search Warrant Application." (Second Am. Compl. ¶ 920). Plaintiffs further allege that Gottlieb, Himan, and Nifong obtained the search warrant for McFadyen's room and vehicle, and that pursuant to that warrant, Gottlieb and Himan searched his dorm room. Plaintiffs allege that at the time Gottlieb, Himan, and Nifong agreed to seek the search warrant, probable cause did not exist, and therefore Gottlieb, Himan, and Nifong "conspired to fabricate and did fabricate a false affidavit that would be facially sufficient to obtain the Warrant." (Second Am. Compl. ¶ 924). Plaintiffs allege that "the Warrant's material factual assertions were all fabrications" and that "in the absence of the fabricated assertions, the Search Warrant would not have issued." (Second Am. Compl. ¶ 926).
As to Defendant Smith, Plaintiffs allege that as Gottlieb and Himan executed the search, "Duke Police Sgt. Smith stood-by, outside the door of McFadyen's dorm room throughout the entire search and took no affirmative acts to intervene, aware that there was not probable cause to believe the crimes alleged had been committed, much less that McFadyen had committed them." (Second Am. Compl. ¶ 922). As to Defendants Levicy and Arico, Plaintiffs allege that "Levicy and Arico agreed to act in concert with Nifong, Gottlieb and Himan by, among other things, providing and/or ratifying the false claims relating to the forensic medical evidence obtained in the SAE that Levicy and Arico falsely claimed was conducted by Levicy." (Second Am. Compl. ¶ 925). Plaintiffs do not separately state any basis for this claim as to Defendants Stotsenberg and the other Defendants who are alleged to be part of the "Day Chain of Command" (Defendants Best, Fleming, Cooper, Humphries, Dean, Graves, Dawkins, Trask, Brodhead, and Steel).
The Fourth Amendment, as applied to the states through the Fourteenth Amendment, prohibits "unreasonable searches and seizures" and specifically provides that "no Warrants shall issue, but upon probable cause supported by
In this case, with respect to the claim alleged in Count 2, the search conducted of McFadyen's dorm room was pursuant to a warrant. Plaintiffs contend that the affidavit submitted in support of the warrant application was intentionally and recklessly false and misleading. Plaintiffs set out extensive factual allegations to establish the plausibility of this claim, and generally allege that "the Warrant's material factual assertions were all fabrications, and, in the absence of the fabricated factual assertions, the Search Warrant would not have issued." (Second Am. Compl. ¶ 926). In response, Defendants raise many of the same contentions raised with respect to Count 1, including the extensive factual contentions, and exhibits, to dispute these allegations and to demonstrate that probable cause existed even if the allegedly false statements are removed and the material omissions are included. Defendants' discussion includes analysis of the contents of an e-mail, disputes regarding the source of that e-mail, and additional factual discussion regarding the allegations that were repeated from the NTO affidavit. However, as discussed with respect to Count 1, the analysis suggested by Defendants requires factual analysis beyond the allegations in the Second Amended Complaint, and the cases cited by the Defendants in support of this analysis involve summary judgment determinations, not determinations on a motion to dismiss. Therefore, the Court finds that this type of analysis is more appropriate at summary judgment after an opportunity for discovery, when the factual record is before the Court for consideration. At this stage in the case, the Court simply concludes that where officers deliberately or recklessly supply false or misleading information to a magistrate to support a warrant application, as alleged in the present case, the officers may be liable under § 1983 for violation of an individual's Fourth Amendment rights, if their actions result in a search without probable cause. In addition, as in Count 1, there is no question that these rights were clearly established, and no reasonable official could have believed that it was permissible to deliberately or recklessly create false or misleading evidence to present to a magistrate in order to obtain a search warrant. See Miller, 475 F.3d at 631-32 ("The Supreme Court has long held that a police officer violates the Fourth Amendment if, in order to obtain a warrant, he deliberately or `with reckless disregard for the truth' makes material false statements or omits material facts.... No reasonable police officer ... could believe that the Fourth Amendment permitted such conduct."); Brooks, 85 F.3d at 183-84. Thus, the Court finds that, taking the allegations as true, Plaintiffs have alleged plausible Fourth Amendment claims as set out in
Having so concluded, the Court must again consider whether this claim has been stated against each of the Defendants against whom it is asserted. First, as to Defendants Gottlieb and Himan, Plaintiffs allege that Gottlieb and Himan were directly involved in the intentional or reckless fabrication of evidence that was submitted to obtain the search warrant that resulted in the search of McFadyen's dorm room. As with the claims alleged in Count 1, Plaintiffs will ultimately be required to present evidence to establish that the Defendants engaged in this alleged conduct, and Defendants will be entitled to present evidence to dispute these allegations. Defendants will also be entitled to present their qualified immunity defense on a motion for summary judgment, for consideration on the factual record. However, at this stage, as noted above, the Court concludes that at the time of the alleged conduct, it was clearly established that an officer's fabrication of evidence before a magistrate judge to effect a search would violate the Fourth Amendment. Therefore, the Motions to Dismiss will be denied as to Defendants Gottlieb and Himan.
With respect to Defendants Levicy and Arico, these Defendants contend that they are not liable under § 1983 because they were not acting "under color of state law" and because any alleged constitutional violation was attributable to Nifong, Gottlieb, and Himan. As discussed with respect to Count 1, "[t]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999). Thus, "the party charged with the deprivation must be a person who may fairly be said to be a state actor.... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). To the extent that a § 1983 claim is based on an alleged "joint participation" or "conspiracy" between private actors and public actors, a bare assertion of a "conspiracy" is insufficient, and a plaintiff must plead enough factual matter to plausibly suggest that an agreement was made to deprive them of their constitutional rights. See Howard v. Food Lion, Inc., 232 F.Supp.2d 585, 597 (M.D.N.C.2002). In the present case, with respect to Levicy, Plaintiffs allege that Levicy had several meetings and interviews with Gottlieb, Himan, and Nifong, and that during those meetings she "repeatedly proffered false testimony that was clearly designed to fill the chasms of Mangum's case and/or restore Mangum's glaring credibility problems," and that this included altering forms and evidence as needed to fit the investigators' case. (Second Am. Compl. ¶ 788; 780-797). Based on those meetings, Plaintiffs allege that Levicy "agreed to act in concert with Nifong, Gottlieb and Himan by, among other things, providing and/or ratifying the false claims relating to the forensic medical evidence" in the sexual assault examination. (Second Am. Compl. ¶ 925). As noted in the Factual Background, Plaintiffs set out specific allegations that Levicy produced falsified medical records and proffered false testimony to corroborate the information in the warrant application. Therefore, as in Count 1, the Court concludes that Plaintiffs have alleged sufficient facts to state a claim against Levicy for her alleged
As to Duke Police Sergeant Smith, Plaintiffs bring this claim based on Smith's presence during the execution of the warrant. This claim is a "bystander liability" claim, pursuant to which "an officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." See Randall v. Prince George's County, 302 F.3d 188, 202-04 (4th Cir.2002). As the basis for this claim, Plaintiffs allege that Smith stood by outside the dorm room during the execution of the search and had a reasonable opportunity to prevent the harm, but did not act to intervene in the search. The Supreme Court in Ashcroft v. Iqbal reiterated that "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (emphasis added). Thus, to be liable for a constitutional violation under § 1983 with respect to Count 2, Smith himself must have had the requisite intent to violate Plaintiff McFadyen's constitutional rights. See id. at 1948-49 (noting that each government actor "is only liable for his or her own misconduct" which requires the requisite intent for the type of constitutional violation pled). For a search conducted pursuant to a warrant, Defendant Smith himself must have known that the sealed warrant affidavit included false and misleading evidence, and Smith must have acted with intent to violate Plaintiff McFadyen's rights or with reckless disregard for those rights. Plaintiffs allege that Smith was "aware that there was no probable cause to believe the crimes alleged had been committed," (Second Am. Compl. ¶ 922), which would not alone be sufficient to establish liability since an officer acting in good faith is entitled to rely on a warrant
Finally, the Court notes that Plaintiffs have not included any allegation or basis for asserting this claim against Defendant Stotsenberg, or the remaining members of the "Day Chain of Command" (Best, Fleming, Cooper, Humphries, Dean, Graves, Dawkins, Trask, Brodhead, and Steel). Therefore, the Motions to Dismiss as to Count 2 will be granted as to these Defendants. In addition, all of the "official capacity" claims will be considered as part of Count 12, since the "official capacity" claims are essentially claims against the City, and Plaintiffs must allege a separate basis for imputing liability to the City, as discussed in Count 12.
As a result, the Motions to Dismiss Count 2 will be granted in part and denied in part. Specifically, Count 2 will go forward as to Defendants Nifong,
In Count 3, Plaintiffs assert a claim under 42 U.S.C. § 1983 for "Abuse of Process."
It is well established that "[a] valid cause of action under § 1983 is not alleged simply by the assertion that a common law tort [such as abuse of process] was committed by a state official. Rather, to have a meritorious claim, a plaintiff must allege that he was deprived of some constitutional right." Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir.1981). Thus, there is no separate § 1983 claim for "abuse of process." Instead, to state a claim under § 1983, Plaintiffs must assert deprivation of a constitutional right.
In Count 3, Plaintiffs generally assert violations of the "First, Fourth and Fourteenth Amendment." However, Plaintiffs in their briefing cite only Rogers v. Pendleton in support of this claim. 249 F.3d 279, 294 (4th Cir.2001) In Rogers, the Fourth Circuit recognized a potential § 1983 claim for a Fourth Amendment violation where officers allegedly arrested a citizen without probable cause, simply for "refusing to consent to an illegal search." Id. at 295. In light of Rogers, Plaintiffs agree that with respect to Count 3, "the Fourth Circuit [has] located the right violated in analogous circumstances in the Fourth Amendment." (Pl.'s Response, Doc. #81, at 9); see also Rogers, 249 F.3d at 294-295. Thus, the right at issue in Count 3 is the right to be free of unreasonable searches and seizures under the Fourth Amendment, as discussed with respect to Counts 1 and 2.
However, having reviewed Plaintiffs' allegations and the parties' contentions, the Court concludes that the alleged violations of Plaintiffs' Fourth Amendment rights as alleged in Count 3 are the same as the Fourth Amendment violations alleged in Counts 1 and 2, the deliberate or reckless use of false and misleading information to obtain a warrant and NTO that were not supported by probable cause. Although Plaintiffs also raise additional contentions in Count 3 regarding the officers' subjective motivations, the constitutional injury alleged is a Fourth Amendment violation for unlawful search and seizure without probable cause. Under established Fourth Amendment principles, an officer's improper motives do not establish a constitutional violation, and police can arrest citizens if probable cause exists to support the arrest, regardless of the officers' subjective motivations. See Rogers, 249 F.3d at 290; Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). Thus, if a search or seizure is properly supported by probable cause, there is no separate constitutional
The Court notes, however, that as part of the Fourth Amendment claims remaining in Counts 1 and 2, the Court does not foreclose the possibility that evidence of the officer's subjective motivations may be relevant. See, e.g., Rogers, 249 F.3d at 295 (noting that in examining the officer's claim of qualified immunity, "we do not lose sight of the possible inference from the evidence that [plaintiff's] arrest was motivated by the officers' anger at his `irreverent' refusal to consent to their search"). Therefore, Plaintiffs are free to raise their contentions as to the officers' motivations as part of their evidence on the Fourth Amendment claims in Counts 1 and 2, particularly with respect to any qualified immunity defense claimed by Defendants, but the separate § 1983 claims asserted in Count 3 for "abuse of process" will be dismissed.
In Count 4, Plaintiffs assert a claim under 42 U.S.C. § 1983 for deprivation of property in connection with the alleged failure of Nifong, Gottlieb, Himan, Clayton, Meehan, and Clark to provide Plaintiffs the results of the DNA tests. As the basis of this claim, Plaintiffs allege that pursuant to North Carolina General Statute § 15A-282, they had "an unconditional, immediate right to copies of reports of any tests conducted with the DNA and photographs taken" pursuant to the NTO. (Second Am. Compl. ¶ 944). Plaintiffs allege that these test results included a March 28 and March 30 SBI report provided to Himan, Gottlieb, and Nifong, an April 4 SBI
The Fourteenth Amendment protects citizens against deprivations of property without due process of law. U.S. Const. amend. XIV.
In Count 4, Plaintiffs contend that they had a constitutionally protected property interest in the results of tests conducted with their photographs and DNA samples that were the products of the NTO procedure, pursuant to North Carolina General Statute § 15A-282. That statute provides that "[a] person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available." N.C. Gen. Stat. § 15A-282. However, North Carolina General Statute § 15A-282 is a state criminal procedure statute, and does not create substantive property rights in the test results. Indeed, the State Criminal Procedure Act provides for suppression of evidence obtained as a result of a "substantial"
Having considered the contentions of the parties, the Court concludes that the state procedural law set out in North Carolina General Statute § 15A-282 does not create property rights that are subject to the due process protections of the Fourteenth Amendment.
In Count 5, Plaintiffs assert a claim under 42 U.S.C. § 1983 for "false public statements," alleging that their constitutional rights were violated by the publication of false and stigmatizing statements about them. Plaintiffs allege that Gottlieb published statements falsely asserting that Mangum was raped, sodomized, and strangled by Plaintiffs or by their teammates in their presence, Plaintiffs allege that Addison published multiple false statements regarding
Plaintiffs also allege that with respect to Steel, Brodhead, and Burness, in addition to publishing false public statements on their own, these Defendants "knew of the outrageous, false and stigmatizing Faculty Statements being made publicly in demonstrations on- and off-campus, lectures in University classrooms, in speeches at professional conferences, in local and national newspapers, and on local and national television news programs" and "knew or were deliberately indifferent to the likelihood that their subordinates' conduct was violating or would likely lead to the violations of Plaintiffs' constitutional rights." (Second Am. Compl. ¶ 963). Plaintiffs allege that Steel, Brodhead, and Burness refused to intervene to correct the unconstitutional conduct. Plaintiffs allege that the Defendants continued to make these statements "long after they were aware ... that Mangum's accusations were false." (Second Am. Compl. ¶ 965). Plaintiffs allege that the Defendants' "failure to act to prevent
The Fourteenth Amendment protects against deprivations of liberty or property rights without due process of law. However, to be entitled to procedural due process rights, a claimant must identify the liberty or property interest at issue. In this regard, the Supreme Court has recognized the right to due process "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). However, the Supreme Court has also held that an injury to reputation alone does not deprive a plaintiff of "liberty" or "property" interests to state a Fourteenth Amendment violation. See Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976). In Paul, the Supreme Court held that where defamatory flyers were distributed by police officers and caused the plaintiff reputational harm, the plaintiff could not state a Fourteenth Amendment violation unless the plaintiff alleged, in addition to the defamatory statement, that some other right or status was altered or extinguished. See id. Under Paul, a Fourteenth Amendment claim based on defamatory statements by government actors requires a plaintiff to allege "(1) the utterance of a statement about her that is injurious to her reputation, `that is capable of being proved false, and that he or she claims is false,' and (2) `some tangible and material state-imposed burden ... in addition to the stigmatizing statement.'" Velez v. Levy, 401 F.3d 75, 87 (2d Cir.2005) (citation omitted). Such a claim is often referred to as a "stigma-plus" claim. Id.; Cooper v. Dupnik, 924 F.2d 1520, 1532 n. 22 (9th Cir.1991) ("The `plus' part of this test can be met by either the denial of a right specifically secured by the Bill of Rights (such as the right to free speech or counsel), or the denial of a state-created property or liberty interest such that the Fourteenth Amendment's Due Process Clause is violated."). Courts have recognized a "stigma-plus" claim where officers are alleged to have made defamatory statements in connection with unlawful arrests or seizures in violation of the Fourth Amendment. See, e.g., Cooper, 924 F.2d at 1534-36; Marrero v. City of Hialeah, 625 F.2d 499, 517-19 (5th Cir.1980); see also Albright v. Oliver, 510 U.S. 266, 294-96, 114 S.Ct. 807, 823-26 127 L.Ed.2d 114 (1994) (Stevens, J., dissenting) (noting that injury to reputation plus unconstitutional prosecution is sufficient to establish "stigma plus"). In addition, the court in Cooper noted that "the law on this point-that defamation in connection with the violation of a constitutional right states a claim under section 1983-was clear" and "it should have been clear to a reasonable public official" that such claims were actionable. Cooper, 924 F.2d at 1534-36 (denying qualified immunity for § 1983 claim involving defamatory statements "intertwined with" an alleged Fourth Amendment violation for an unconstitutional arrest).
In light of these cases and in light of the Court's determination that Plaintiffs have stated a potential claim for violation of their Fourth Amendment rights with respect to Counts 1 and 2, the Court concludes that Plaintiffs have alleged a § 1983 claim for violation of their Fourteenth Amendment rights based on the alleged government officials' false public statements that imposed a reputational burden on them without providing due process. Specifically, the Court finds that Plaintiffs
However, as in Counts 1 and 2, the Court must consider whether Plaintiffs have stated a claim against each of the Defendants against whom this claim is asserted. With respect to Gottlieb, Plaintiffs allege that Gottlieb deliberately made false statements in the affidavit in support of the NTO and search warrant, with the intent that the information would be published and would stigmatize Plaintiffs. This claim is directly related to the claims asserted in Counts 1 and 2, and the Court finds that Plaintiffs have stated a claim in Count 5 with respect to Gottlieb as a result of allegedly false public statements made in connection with the alleged Fourth Amendment violations in Counts 1 and 2.
With respect to Defendants Addison, Hodge, and Wilson, Plaintiffs contend that Addison, Hodge, and Wilson each made false public statements, and Plaintiffs also contend that Addison, Hodge, and Wilson knew of and participated in the conspiracy to create false and misleading evidence against them. Cf. Velez, 401 F.3d at 88-89 (noting that "[w]hen government actors defame a person and-either previously or subsequently-deprive them of some tangible legal right or status ... a liberty interest may be implicated, even though the `stigma' and `plus' were not imposed at precisely the same time" or by "the same actor," as long as they are "connected"); Marrero, 625 F.2d at 519 (noting that it is sufficient "that the defamation occur in connection with, and be reasonably related to, the alteration of the right or interest"). To the extent that these Defendants contest the particular nature or timing or effect of what was allegedly said, the Court concludes that such a factual inquiry is more appropriate on a motion for summary judgment, and Plaintiffs have alleged that each of the named Defendants made deliberately false public statements in connection with the NTO and the subsequent alleged falsification of evidence to support the NTO and cover-up the constitutional violations.
With respect to Defendants Arico, Steel, Brodhead and Burness, these Defendants contend that they are not liable under § 1983 because they were not acting "under color of state law." As noted above, "[t]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (internal citations omitted). Thus "the party charged with the deprivation must be a person who may fairly be said to be a state actor.... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). "Under th[e state-action or color-of-law] doctrine, we `insist []' as a prerequisite to liability `that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.' By doing so, we maintain the Bill of Rights as a shield that protects private citizens from the excesses of government, rather than a sword that they may use to impose liability upon one another." Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 181 (4th Cir.2009) (quoting Holly v. Scott, 434 F.3d 287, 292 (4th Cir.2006) ("Statutory and common law, rather than the Constitution, traditionally govern relationships between private parties.")). To the extent that a § 1983 claim is based on an alleged "joint participation" or "conspiracy" between private actors and public actors, a bare assertion of a "conspiracy" is insufficient, and a plaintiff must plead enough factual matter to plausibly suggest that an agreement was made to deprive them of their constitutional rights. See Howard v. Food Lion, Inc., 232 F.Supp.2d 585, 597 (M.D.N.C. 2002) (holding that in bringing a conspiracy claim under § 1983, the plaintiff "must allege both a mutual understanding to achieve some unconstitutional action reached by the private and state defendants and some factual assertions suggesting a meeting of the minds," and that "[w]hen a complaint contains merely a vague allegation of conspiracy, it cannot withstand a motion to dismiss"); see also Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.2002) ("To be liable as a co-conspirator, a private defendant must share with the public entity the goal of violating a plaintiff's constitutional rights."). In addition, to be acting "under color of state law" based on joint participation, "the private action must have a `sufficiently close nexus' with the state [so] that the private
In the present case, Plaintiffs allege generally that Arico, Steel, Brodhead, and Burness were acting under "color of law." (Second Am. Compl. ¶ 955). However, a conclusory allegation that an individual or entity was acting "under color of law" is not sufficient, and Plaintiffs must instead plead specific facts to survive a motion to dismiss. With respect to Defendants Arico, Steel, Brodhead, and Burness, Plaintiffs do not allege facts specifically to support the conclusion that these individuals entered into an agreement with Gottlieb, Himan, or Nifong to provide false evidence in connection with the NTO and violate Plaintiffs' constitutional rights. As noted with respect to Counts 1 and 2, the only specific allegation as to Arico is that she gave an interview to a newspaper reporter regarding the sexual assault examination. (Second Am. Compl. ¶ 784). This allegation against Arico is insufficient to state a plausible claim that Arico entered into a conspiracy with Nifong, Gottlieb, and Himan and was acting under color of state law when she gave the interview, or that the interview alone was sufficient to allege joint participation by Arico in the alleged violation of Plaintiffs' constitutional rights. With respect to Steel, Brodhead, and Burness, Plaintiffs allege generally that Duke officials met with Durham Police officials, but there is not a sufficient factual basis alleged to state a plausible claim that these Defendants reached a meeting of the minds with Nifong, Gottlieb, and Himan to jointly participate in a violation of Plaintiffs' constitutional rights as alleged in Counts 1 and 2. Moreover, with respect to the particular allegations in Count 5 as to statements made by Steel, Brodhead, and Burness, the Court concludes that Plaintiffs have not stated a plausible claim that this private action "may be fairly treated as that of the State itself." Because there is not a plausible claim that Defendants Arico, Steel, Brodhead, and Burness were acting "under color of state law," the Motion to Dismiss will be granted with respect to Count 5 as to these Defendants. Cf. Howard, 232 F.Supp.2d at 597 (dismissing § 1983 claim against private party where the complaint failed to plead any facts suggesting that the private party and the government actor reached a meeting of the minds).
Finally, the Court notes that the "official capacity" claims against Addison, Gottlieb, and Hodge will be treated as claims against the City, and those claims against the City and against Duke and will be considered as part of Count 12, since Plaintiffs must allege a separate basis for imputing liability to these Defendants, and those allegations are made by Plaintiffs as part of Count 12.
Therefore, with respect to Count 5, the Court concludes that Count 5 will go forward as to Defendants Nifong,
In Count 6, Plaintiffs bring a claim under 42 U.S.C. § 1983 for the manufacture of false inculpatory evidence. As the basis for this claim, Plaintiffs allege that Nifong, Gottlieb, Himan, Duke, Duke Health, Private Diagnostic, Manly, Arico, and Levicy conspired to "fabricate inculpatory forensic medical evidence for the purpose of corroborating Mangum's false accusations by altering the SAER and other medical records that contradicted Mangum's claims to conform them to the fabricated [NTO] Affidavit as well as the expected evidence in the case." (Second Am. Compl. ¶ 970). Plaintiffs allege that Levicy, under Arico's supervision, fabricated the medical records by revising the original responses and fabricating responses to match existing and expected evidence. Plaintiffs further allege that Nifong, Gottlieb, Clayton, and Himan designed an identification procedure that was, by design, intended to "facilitate the misidentification of Plaintiffs and/or Plaintiffs' teammates." (Second Am. Compl. ¶ 972). Plaintiffs allege that Nifong, Gottlieb, Himan, Clark, Meehan, and DSI, conspired to produce a false and misleading DNA report, including fabrication of a DNA "match" involving a "crime scene fingernail" without noting that no material on the fingernail matched Mangum, and that the report was fabricated with the specific intent to intimidate other team members. (Second Am. Compl. ¶ 973). Plaintiffs contend that the Defendants engaged in this conduct with the intent of securing indictments of Plaintiffs and their teammates, and with reckless disregard for and deliberate indifference to Plaintiffs' rights, resulting in deprivation of Plaintiffs' rights under Article IV of the Constitution and the First, Fourth, Fifth, and Fourteenth Amendments.
The Fourth Circuit has held that individuals possess a Fourteenth Amendment Due Process "`right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.'" Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005) (quoting Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir.2000)); see White v. Wright, 150 Fed.Appx. 193, 198-99 (4th Cir.2005). Indeed, "`if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).'" Washington, 407 F.3d at 285 (Shedd, J., concurring) (quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004)). This Fourteenth Amendment right applies to the use of fabricated evidence at trial. See id. at 282-84. In addition, some courts have recognized a Fourteenth Amendment right in the context of pre-trial proceedings, where the fabricated evidence resulted in the citizen's arrest after his indictment. See id. at 282 (citing Zahrey v. Coffey, 221 F.3d 342, 349-50 (2d Cir.2000)). Thus, although there is a lack of clear guidance on the structure of the various constitutional doctrines involved here, the Court concludes that there can be no question that the Constitution has been violated when government officials intentionally fabricate evidence to frame innocent citizens,
However, there must be some deprivation of a recognized liberty or property interest in order to invoke the protections of the Fourteenth Amendment. See Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir.2000) ("The manufacture of false evidence, `in and of itself,' ... does not impair anyone's liberty, and therefore does not impair anyone's constitutional right."). Plaintiffs nevertheless contend that they can state a claim in Count 6 under the Fourteenth Amendment for conduct by government officials that "shocks the conscience." However, conduct that "shocks the conscience" may be actionable in a § 1983 claim under the Fourteenth Amendment, but only where the conscience-shocking conduct actually results in deprivation of a life, liberty or property interest. See County of Sacramento v. Lewis, 523 U.S. 833, 845-49, 118 S.Ct. 1708, 1716-18, 140 L.Ed.2d 1043 (1998). Thus, established case law simply does not allow this Court to recognize a separate Fourteenth Amendment violation for manufacturing of false inculpatory evidence, where no life, liberty, or property interest is impaired as a result of that misconduct.
In considering these principles in the present case, the Court concludes that Plaintiffs have not alleged any deprivation of a liberty or property interest, other than that alleged as part of Counts 1, 2, and 5, and the Court has already addressed those claims as to each of those respective counts.
In Count 7, Plaintiffs assert a claim under 42 U.S.C. § 1983 for concealment of
However, the right to disclosure of exculpatory information is a trial right, and the Fourth Circuit has held a claim for failure to disclose exculpatory information during an investigation "does not allege a deprivation of any right guaranteed under the Due Process Clause of the Fourteenth Amendment," and is instead cognizable only pursuant to the Fourth Amendment. See Taylor v. Waters, 81 F.3d 429, 436 (citing Albright v. Oliver, 510 U.S. 266, 268-76, 114 S.Ct. 807, 810-14, 127 L.Ed.2d 114 (1994) and Baker v. McCollan, 443 U.S. 137, 142-46, 99 S.Ct. 2689, 2693-96, 61 L.Ed.2d 433 (1979)); see also United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 2454, 153 L.Ed.2d 586 (2002) (noting that a defendant's right to receive exculpatory material from prosecutors is "a right that the Constitution provides as part of its basic `fair trial' guarantee" under the Fifth and Sixth Amendments (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963))).
Thus, Plaintiffs cannot state a Fourteenth Amendment claim for failure to disclose exculpatory evidence or for concealment of evidence during the investigation where they were not subject to trial. As discussed above with respect to Count 6, Plaintiffs have asserted Fourth Amendment claims in Counts 1 and 2, and as part of those claims, the Court has considered Plaintiffs' contentions that they were subject to searches and seizures on warrants that were obtained by deliberate concealment of material evidence. However, there is no basis on which Plaintiffs can assert a § 1983 claim for an additional, separate Fourteenth Amendment violation for concealment of exculpatory evidence during an investigation, and this claim in Count 7 will therefore be dismissed as to all Defendants against whom it is asserted.
In Count 8, Plaintiffs assert a claim under 42 U.S.C. § 1983 for "Interfering with the Right to Engage in Political Processes." As the basis for this claim, Plaintiffs allege that Steel, Brodhead, Trask,
In considering claims involving alleged violations of the First Amendment on private property, the Supreme Court has held that "the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself." Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976) (internal citations omitted); Lloyd Corp. v. Tanner, 407 U.S. 551, 567-70, 92 S.Ct. 2219, 2228-29, 33 L.Ed.2d 131 (1972). Under these decisions, "[b]efore an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use." Cent. Hardware Co. v. NLRB, 407 U.S. 539, 547, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122 (1972).
In the present case, all of the alleged conduct with respect to Count 8 is alleged to have occurred on the campus of Duke University and to have been committed by Duke employees at the direction of Duke administrators. Thus, the alleged conduct involves actions by Duke, not the government, to control the types of speech the Duke would allow on its own property. The claim is asserted against Duke administrators Steel, Brodhead, and Burness. In these circumstances, having considered Plaintiffs' allegations, the Court concludes that a claim against these private university administrators for actions it takes on its own campus cannot support a claim for violation of the First Amendment. The action taken by Duke and its employees — at the direction of Duke administrators — is not plausibly alleged to be government action taken "under color of state law" under § 1983.
In Count 9, Plaintiffs assert a claim under 42 U.S.C. § 1983 for "Retaliation." As the basis for this claim, Plaintiffs allege that all of the Defendants named in this Count "directed, participated, condoned or ratified the violations of Plaintiffs' constitutional rights as alleged herein in retaliation for Plaintiffs' decision to exercise their constitutional right not to submit to police interrogation without the benefit of counsel." (Second Am. Compl. ¶ 994). Plaintiffs allege that Nifong, Gottlieb, and Himan retaliated against Plaintiffs by "causing court orders to be issued based upon fabricated sworn Affidavits" including the NTO and Search Warrant. (Second
However, as discussed with respect to Count 3, to the extent that Plaintiffs allege that their Fourth Amendment rights were violated by the deliberate or reckless use of false and misleading information to obtain a search warrant and NTO that were not supported by probable cause, those claims have already been considered in Counts 1 and 2. Although Plaintiffs also raise additional contentions in Count 9 (as in Count 3) regarding the officers' subjective motivations, an officer's improper motives do not establish a Fourth Amendment violation, and police can arrest citizens if probable cause exists to support the arrest, regardless of the officers' subjective motivations. See Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir.2001); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996); cf. Hartman v. Moore, 547 U.S. 250, 260-62, 126 S.Ct. 1695, 1703-05, 164 L.Ed.2d 441 (2006) (finding that there could be no constitutional claim for "retaliatory prosecution," regardless of the officers' motivation, if there was probable cause to support the prosecution). Thus, if a search or seizure is properly supported by probable cause, there is no separate Fourth Amendment violation based on the officers' subjective motivations. As such, Plaintiffs cannot state a claim for retaliation under the Fourth Amendment, and any Fourth Amendment claims must be analyzed under the standards set out in Counts 1 and 2.
Moreover, to the extent that Plaintiffs' claim in Count 9 is based on alleged retaliation against them for their decision not to submit to voluntary, uncounseled interviews with police officers, the Court notes that the right not to speak to police officers is derived from the Fifth Amendment privilege against self-incrimination, but that right is not violated unless the results of the interview are used against the individual in a criminal proceeding. See Thompson v. Keohane, 516 U.S. 99, 107, 116 S.Ct. 457, 462-63, 133 L.Ed.2d 383 (1995); Miranda v. Arizona, 384 U.S. 436, 467-69, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694 (1966); Burrell v. Virginia, 395 F.3d 508, 512-14 (4th Cir.2005). Thus, Plaintiffs have not stated a claim for violation of their Fifth Amendment rights. Plaintiffs do not assert otherwise, and in their Response Briefs, Plaintiffs do not attempt to present any authority recognizing
Instead, Plaintiffs contend that the claim in Count 9 is a claim for retaliation against them for exercising their constitutionally-protected First Amendment free speech rights. In this regard, the Fourth Circuit has recognized a potential § 1983 "retaliation" claim in cases where government officials retaliate against government employees or other citizens for exercise of their free speech rights. See The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 416-17 (4th Cir.2006) (recognizing a potential § 1983 claim based on retaliation by government officials against a reporter, but noting that "the retaliation cause of action must be administered to balance governmental and private interests so as not to impose liability in everyday, run-of-the-mill encounters"). Such a claim requires a plaintiff to establish "[1] that his or her speech was protected[,] ... [2] that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech[,][and] ... [3] that a causal relationship exists between its speech and the defendant's retaliatory action." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir.2000) (internal citations omitted). Plaintiffs contend that they can state such a First Amendment retaliation claim because Defendants retaliated against them for exercising their right "not to speak." See Wooley v. Maynard, 430 U.S. 705, 714-16, 97 S.Ct. 1428, 1435-36, 51 L.Ed.2d 752 (1977) (recognizing a First Amendment right "to refrain from speaking" with respect to a state motto on a license plate). However, this "right not to speak" has been limited to the context of government-compelled speech with respect to a particular political or ideological message. See United States v. Sindel, 53 F.3d 874, 878 (8th Cir.1995) (noting that "[a] First Amendment protection against compelled speech ... has been found only in the context of governmental compulsion to disseminate a particular political or ideological message" and "[t]here is no right to refrain from speaking when `essential operations of government may require it for the preservation of an orderly society,-as in the case of compulsion to give evidence in court.'" (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 645, 63 S.Ct. 1178, 1189, 87 L.Ed. 1628 (1943) (Murphy, J., concurring))); Kania v. Fordham, 702 F.2d 475, 478 n. 6 (4th Cir.1983). Plaintiffs cite no authority to support the application of the First Amendment protection against government-compelled ideological or political speech into the context of police interviews, which are covered by the more specific protections of the Fourth, Fifth, and Sixth Amendments. Therefore, the Court rejects Plaintiffs' legal contention that declining to speak to police officers during a criminal investigation raises First Amendment protections. Moreover, even if this novel interpretation of the First Amendment were accepted, there was no clearly established First Amendment right not to speak to police officers at the time of the conduct alleged in the Second Amended Complaint, and therefore a reasonable police officer would not have known that First Amendment protections applied in that situation. As such, qualified immunity would apply in any event.
In Count 10, Plaintiffs assert a claim under 42 U.S.C. § 1983 alleging that Defendants' conduct deprived Plaintiffs of the "same privileges and immunities they bestowed upon similarly situated citizens of the State of North Carolina because of Plaintiffs' real or perceived status as citizens of other states." (Second Am. Compl. ¶ 1004). Plaintiffs allege that Defendants' conduct was "not closely tailored or rationally related to any legitimate or substantial state interest" and deprived Plaintiffs of their rights under Article IV of the Constitution and the Fourteenth Amendment. (Second Am. Compl. ¶ 1005-1006).
Article IV of the Constitution provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2. Pursuant to this provision, "a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the `Privileges and Immunities of Citizens in the several States' that he visits. This provision removes `from the citizens of each State the disabilities of alienage in the other States.'" Saenz v. Roe, 526 U.S. 489, 501, 119 S.Ct. 1518, 1525, 143 L.Ed.2d 689 (1999) (quoting Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1868)). This provision "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). Thus, a state may not discriminate against non-residents with respect to the privileges and immunities it provides to its own citizens unless there is a sufficient justification for the discrimination.
In their briefing in support of Count 10, Plaintiffs contend that this claim invokes the "right to travel," including (1) the right of a citizen of one State to enter and to leave another State, (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and (3) for travelers who elect to become residents of a new State, the right to be treated like other citizens of that State. However, Plaintiffs do not cite any cases in which a burden on the "right to travel" was recognized in circumstances analogous to those claimed here. Moreover, the Privileges and Immunities Clause does not protect citizens of a state from actions of their own state. See Goldfarb v. Supreme Court of Virginia, 766 F.2d 859, 864-65 (4th Cir.1985) ("[T]he Privileges and Immunities Clause provides `no security for the citizen of the State in which [the privileges] were claimed.'" (quoting The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77, 21 L.Ed. 394 (1873))); United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 217, 104 S.Ct. 1020, 1027, 79 L.Ed.2d 249 (1984). Of the three Plaintiffs in this suit, one of them, Plaintiff Matthew Wilson, is a North Carolina resident who was a "permanent resident" of Durham. Plaintiffs contend that Matthew Wilson was nevertheless discriminated against as a Duke Student who was "perceived" to be an out-of-state resident. However, the Court concludes that the facts set out in the Second Amended Complaint would, at most, support the assertion that Plaintiffs were singled out or discriminated against because they were Duke Students, not because they were out-of-state residents. Plaintiffs allege that the City adopted a "Zero Tolerance" policy that involved excessive
In Count 11, Plaintiffs bring claims under 42 U.S.C. § 1983 for "Failure to Prevent Deprivation of Constitutional Rights" raising issues of "bystander liability." Plaintiffs divide this claim into five sections. First, Plaintiffs assert claims against the Duke Police Defendants (Brodhead, Trask, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, Best, Smith, and Stotsenberg) in their individual and official capacities, alleging that Plaintiffs were subjected to violations of their constitutional rights by Duke and Durham officers, and that these Defendants were present and knew of the violations and had a reasonable opportunity to prevent the harm but "turned a blind eye" and did nothing. Second, Plaintiffs assert claims against Steel, Brodhead, Trask, and the other Duke Police supervisors (Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming and Best), in their individual and official capacities, alleging that these Defendants had "shared final policymaking authority" for Duke and were aware of the violations of Plaintiffs' rights but directed all Duke Police officers to do nothing. Third, Plaintiffs assert claims against Durham Police Defendants (Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, Soukup, Michael, Addison, Gottlieb, Himan, Wilson, and Clayton) alleging that Plaintiffs were subjected to violations of their constitutional rights by Duke and Durham officers, and that these Defendants were present or knew of the violations and had a reasonable opportunity to prevent the harm but "turned a blind eye" and did nothing. Fourth, Plaintiffs assert claims against Durham supervisors (Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Soukup) and the City, alleging that these Defendants had "final policymaking authority" and were aware of the violations of Plaintiffs' rights but directed Durham Police officers to do nothing. Fifth, Plaintiffs assert claims against Duke and the City alleging that Duke and the City "had an established policy or custom whereby Duke Police Officers and Durham Police Officers,
In considering these contentions, the Court notes that the Fifth contention, which asserts a claim against Duke and the City based on an "established policy or custom," is an attempt to establish liability under Monell and is therefore considered as part of Count 12. In addition, the Court concludes that the Second and Fourth contentions against the supervisors with "final policymaking authority" are also attempts to establish liability of Duke or the City under Monell and are therefore also considered as part of Count 12.
As discussed previously, "an officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." See Randall v. Prince George's County, 302 F.3d 188, 202-04 (4th Cir.2002). However, the Supreme Court in Ashcroft v. Iqbal reiterated that in a § 1983 suit, "a plaintiff must plead that each Government-official defendant, through the officials' own individual actions, has violated the Constitution." 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (emphasis added). Thus, to be liable for a constitutional violation under § 1983, each individual defendant must have had the requisite intent to violate Plaintiffs' constitutional rights. See id. at 1948-49 (noting that each government actor "is only liable for his or her own misconduct" which requires the requisite intent for the type of constitutional violation pled). Therefore, "bystanders" cannot be liable under § 1983 for simply negligent conduct in failing to intervene. Instead, the bystander must have been present for the violation, with a reasonable opportunity to intervene, and must have had the requisite intent to violate the citizen's constitutional rights.
In addition, under Iqbal, the allegations must offer more than "labels and conclusions" or "naked assertions" or "a formulaic recitation of the elements of a cause of action." Id. at 1949 (internal quotations omitted). The allegations must instead include specific factual allegations. Moreover, the facts pled must not be "merely consistent with a defendant's liability" and instead must be sufficient to state a plausible entitlement to relief. Id. (internal quotations omitted).
In the present case, the Court has concluded that Plaintiffs have stated a potential claim for an unconstitutional search and seizure as alleged in Counts 1 and 2, and for reputational injury suffered as a result of intentionally false public statements made in connection with the allegedly unlawful seizure without due process of law, as alleged in Count 5. These claims
However, the claims asserted by Plaintiffs in Count 11 are "group" claims asserting liability against 29 Defendants
Thus, having reviewed the Second Amended Complaint and Plaintiffs' Response Briefs, the Court concludes that the "group" allegations are insufficient and conclusory, and Plaintiffs have not sufficiently stated a "bystander liability" claim with respect to Counts 1, 2, and 5 as to the multiple Defendants against whom this claim is asserted (Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, Haltom, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, Best, Smith, Stotsenberg, Duke Police, Duke, Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, Soukup, Michael, Addison, Gottlieb, Himan, Wilson, Clayton and the City). The burden is on Plaintiffs to make sufficient allegations to support a plausible claim as to each named Defendant, and Plaintiffs have failed to do so here.
In Count 12, Plaintiffs assert their § 1983 claims against the City and against Duke under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Pursuant to Monell, a municipality is not vicariously liable under § 1983 for actions of its employees; instead, a municipality is only liable under § 1983 if the alleged constitutional violations were the result of a municipal policy or practice. A municipality may be liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. A plaintiff can establish liability under Monell where the constitutional injury is proximately caused by a written policy or ordinance, or by a widespread practice that is "so permanent and well settled as to constitute a `custom or usage' with the force of law." City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988) (citation omitted). In addition, the Supreme Court has also recognized that liability may be imposed on a municipality where the constitutional injury is proximately caused by the decision of an official with final policymaking authority, that is, an official with authority to establish and implement municipal policy in that area. Id. at 127, 108 S.Ct. at 926. Finally, municipal liability has been recognized based on inadequate
To impose municipal liability based on the decision of a final policymaking official, the final policymaking official must have been "aware of the constitutional violation and either participated in, or otherwise condoned, it." Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir.2004). This includes situations where "the authorized policymakers approve a subordinate's decision and the basis for it," since "their ratification would be chargeable to the municipality because their decision is final." Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. Thus, liability may be imposed where the final policymaking official intentionally participates in or ratifies the constitutional violation. In addition, where a final policymaking official makes a decision or acts in a manner that is not in itself unconstitutional, liability may still exist if the final policymaking official acts with "deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Bd. of the County Comm'rs of Bryan County, 520 U.S. at 411, 117 S.Ct. at 1392; see also Carter v. Morris, 164 F.3d 215, 218-19 (4th Cir. 1999) (describing the required connection between the official's deliberate indifference and the ultimate constitutional violation).
In the present case, as the basis for Count 12, Plaintiffs allege that: (A) City and University policies were the moving force behind the deprivations of Plaintiffs' constitutional rights; (B) officials with final policymaking authority participated in or directed the violations of Plaintiffs' constitutional rights; and (C) Duke and City officials with final policymaking authority with respect to the investigation delegated some or all of their policymaking authority but failed to exercise adequate supervising responsibility over the delegate's exercise of said final policymaking authority. With respect to the first contention, that City and University policies were the moving force behind the deprivations of Plaintiffs' constitutional rights, Plaintiffs allege that the moving force behind the violations was a "Zero-Tolerance" policy, agreed to by the City and Duke, pursuant to which "Durham Police and Duke Police would target Duke Students who lived or strayed off-campus for disproportionate enforcement of the criminal laws." (Second Am. Compl. ¶ 108). Plaintiffs allege that as part of this policy, Nifong agreed to "observe a `no drop' policy, pursuant to which his office refused to unilaterally dismiss charges brought against Duke students" in the neighborhoods outside the Duke campus.
Based on these prior incidents, Plaintiffs allege that the "Zero Tolerance Policy" encouraged and authorized officers to execute warrantless raids of Duke Students' homes, obtain warrants and other legal process against Duke Students for unauthorized purposes, subject Duke Students to unconstitutional searches and seizures in the absence of probable cause for the purpose of publicly humiliating or abusing the Duke Students, fabricate witness accounts of events to obtain convictions of Duke Students, "turn a blind eye" to the deprivation of Duke Students' constitutional rights, and retaliate against officers who acted to prevent the deprivation of students' constitutional rights. Plaintiffs allege that this policy was ratified by Durham Police Captain Lamb and by his predecessor Captain Sarvis. In addition, Plaintiffs allege that Baker was another policymaker who developed the policy. Plaintiffs allege that it was clear that the policy would lead to a deprivation of Plaintiffs' constitutional rights and that as a direct and foreseeable consequence of the Zero-Tolerance policy, Plaintiffs were deprived of their rights under Article IV of the Constitution and the First, Fourth, Fifth, and Fourteenth Amendments. (Second Am. Compl. ¶ 1045).
With respect to Plaintiffs' contention that Monell liability should attach because "officials with final policymaking authority participated in or directed the violations of Plaintiffs' constitutional rights," Plaintiffs allege that Duke Officials with final policymaking authority, including Steel, Brodhead,
Finally, Plaintiffs contend that Monell liability should attach to both Duke and the City because "Duke and City officials with final policymaking authority with respect to the investigation delegated some or all of their policymaking authority but failed to exercise adequate supervising responsibility over the delegate's exercise of said final policymaking authority." In this regard, Plaintiffs allege that Duke and Durham officials were aware of issues regarding Gottlieb
Although "[t]he substantive requirements for proof of municipal liability are stringent," § 1983 claims are not subject to any heightened pleading standard, and "primary reliance must be placed on discovery controls and summary judgment to ferret out before trial unmeritorious suits against municipalities." Jordan v. Jackson, 15 F.3d 333, 338-40 (4th Cir. 1994). Thus, where a complaint alleges the existence of municipal policies, alleges that officials with final policymaking authority condoned and ratified unconstitutional conduct of subordinates, and alleges that the policies proximately caused the alleged constitutional violation, the allegations are sufficient at the motion to dismiss stage, although the "required showings are appreciably more demanding" at summary judgment. Jordan, 15 F.3d at 340.
Having considered Plaintiffs' contentions in the present case with respect to the City, the Court concludes that Plaintiffs have sufficiently stated a claim for Monell liability against the City at this stage in the case. Specifically, the Court concludes that Plaintiffs have alleged that enforcement of the "Zero-Tolerance" policy led to multiple constitutional violations against Duke Students, particularly by Gottlieb, and that the City through its final policymaking officials nevertheless continued the policy and ratified and condoned those violations. Plaintiffs have stated a plausible claim that this condoning of constitutional violations in the enforcement of the policy led to the constitutional violations alleged by Plaintiffs in the present case.
However, with respect to Plaintiffs' contention that Monell liability should attach
Under North Carolina law, the District Attorneys are state actors who act on behalf of the State of North Carolina and answer to the State Attorney General. N.C. Const. art. IV, § 18(1); N.C. Gen. Stat. § 7A-61, 69; see also Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.2006) (holding that a suit against a District Attorney in his "official capacity" in North Carolina is a suit against the State as is therefore subject to Eleventh Amendment immunity). Although the Second Amended Complaint alleges that the City delegated authority to Defendant Nifong to direct the investigation, the Court concludes that delegation of authority to supervise a particular investigation is not equal to delegation of authority to set City law enforcement policy. Moreover, there is no state law that would allow a city to delegate its policymaking authority to a state prosecutor, and only the state legislature has authority to prescribe duties for District Attorneys or supervise the District Attorney's exercise of authority. See N.C. Const. art. IV, § 18(1) ("The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe."); State v. Smith, 359 N.C. 199, 225, 607 S.E.2d 607, 625 (2005) (Brady, J., concurring); Simeon v. Hardin, 339 N.C. 358, 373, 451 S.E.2d 858, 868 (1994) ("[T]he district attorney's duties, including the docketing of criminal cases, are derived from statutes promulgated by the General Assembly pursuant to authority granted in Article IV, Section 18 of the North Carolina Constitution."). Therefore, the Court concludes that the City could not have delegated its policymaking authority to Nifong, and the claims against
However, with respect to the Monell claims asserted against Duke, the Court notes again, as discussed above, that Duke is a private party, and § 1983 claims are not intended to become a basis for private tort claims. Instead, § 1983 claims arise where the government acts to deprive a citizen of his or her rights under the Constitution or laws of the United States. As discussed above, "[t]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (internal citations omitted). "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). Thus "the party charged with the deprivation must be a person who may fairly be said to be a state actor ... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). "Under th[e state-action or color-of-law] doctrine, we `insist []' as a prerequisite to liability `that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.' By doing so, we maintain the Bill of Rights as
In addition, throughout the Second Amended Complaint, Plaintiffs contend that Duke is responsible for "delegating" authority to the City and to Nifong to conduct the investigation. However, the City and Nifong each had their own statutory authority to conduct the investigation as they chose. In support of their contention, Plaintiffs rely on the "Jurisdictional Agreement" between the Duke Police and Durham Police. Pursuant to this Agreement, Plaintiffs allege that Duke Police had "primary jurisdiction" over the residence at 610 N. Buchanan, and that Duke became responsible for constitutional violations by the City and Nifong because Duke "delegated" its "jurisdiction" to Nifong and the City. However, as discussed above, under state law, Duke could not have delegated "authority" to Nifong, and Nifong could not have been acting in an "official capacity" on behalf of the City or Duke. In addition, the Court concludes that there is no plausible claim that Duke delegated police powers or investigative responsibility to the City. In this regard, as a matter of state law, the Durham Police had complete statutory authority under North Carolina law, on campus and off. See N.C. Gen.Stat. § 15A-402; § 160A-286. The
In addition, although Plaintiffs do not assert a claim directly against Duke Health in Count 12, Plaintiffs allege elsewhere in the Second Amended Complaint that the "Chairman's Directive" was the moving force behind Levicy's conduct or that Dzau, as a policymaker for Duke and Duke Health, ratified and condoned their participation in these unconstitutional acts (Second Am. Compl. ¶ 996). However, although the Court has concluded that there are sufficient allegations to support at least a plausible claim that Levicy herself jointly participated with Nifong, Gottlieb, and Himan in the constitutional violations alleged as to Counts 1, 2, and 5, that does not transform her supervisors or her employer into state actors. The allegations against Duke are not sufficient to state a plausible claim that Duke Health was acting as the Government. Therefore, the Court concludes that Plaintiffs have failed to allege a plausible claim that either Duke or Duke Health was a "state actor" or was acting "under color of state law" so as to impose § 1983 liability on a private university.
Therefore the Motions to Dismiss as to Count 12 will be granted as to Duke but will denied as to the City, such that the City is properly included as a Defendant in Counts 1, 2, and 5.
In Count 13, Plaintiffs assert claims under 42 U.S.C. § 1983 for "supervisory liability." As the basis for this claim, Plaintiffs allege that the named Defendants are liable on four bases. First, Plaintiffs allege that the Duke and Durham Supervisors named as Defendants in this Count are liable under § 1983 for failing to "control and supervise" the investigation after Duke Police ceded authority to Gottlieb
Supervisory officials may be liable under § 1983 if "(1) ... the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed `a pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff; (2) ... the supervisor's response to that knowledge was so inadequate as to show `deliberate indifference to or tacit authorization of the alleged offensive practices[]'; and (3) ... there was an `affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). As discussed above, the Supreme Court in Ashcroft v. Iqbal reiterated that "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (emphasis added). In Iqbal, the Supreme Court affirmed that under § 1983, supervisors "may not be held accountable for the misdeeds of their agents" and noted that as such, "the term `supervisory liability' is a misnomer." Id. at 1949. Thus, each government actor "is only liable for his or her own misconduct" which requires the requisite intent for the type of constitutional violation pled. See id. (holding that where the underlying constitutional violation required a showing of "purpose" to discriminate, "a supervisor's mere knowledge of his subordinate's discriminatory purpose" is not sufficient to establish a constitutional violation by the supervisor). However, in applying this standard, circuit courts have concluded that supervisory liability may still be imposed based on "deliberate indifference" where the underlying constitutional violation itself may be established based on deliberate indifference. See Starr v. Baca, No. 09-55233, 633 F.3d 1191, 1196-97 (9th Cir.2011); see also, e.g., Smith v. Ray, 409 Fed.Appx. 641, 650-51 (4th Cir.2011) (continuing to apply the Shaw v. Stroud "deliberate indifference" standard).
In this case, Plaintiffs assert a claim for "supervisory liability" against Durham officials Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Soukup.
Although Plaintiffs' allegations are not direct or concise with respect to these Supervisors, the Court concludes that in light of the evolving law regarding supervisory liability after Iqbal, Plaintiffs have sufficiently alleged conduct by these Supervisors to at least raise a plausible claim at this stage in the case.
However, as to Defendant Evans, Plaintiffs allege that Evans was a Sergeant with the Durham Police Department who became Himan's supervisor in October 2006, but there is no basis on which to state a claim against Evans for liability for the alleged constitutional violations in Counts 1, 2, and 5, which are alleged to have occurred in March and April of 2006, months before Evans became a supervisor. In addition, as to Defendant Mihaich, Plaintiffs concede that Mihaich was not a direct supervisor of anyone who engaged in alleged constitutional violations. Plaintiffs nevertheless contend that Mihaich should have maintained responsibility for the investigation, but this is an insufficient basis on which to state a claim for supervisory liability against Mihaich. Finally, Plaintiffs allege that Soukup was the Director of the Durham Communications Center and allegedly delegated his authority to Addison and Michael with respect to records and recordings of the investigation, but that is also an insufficient basis on which to allege liability for the constitutional violations alleged in Counts 1, 2, and 5. Therefore, the supervisory liability claims against Evans, Mihaich, and Soukup will be dismissed.
To the extent that this claim is brought against Duke employees and officials (Brodhead, Trask, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, Best, Steel, Lange, Burness, Moneta, Dzau, Haltom, Wasiolek, Bryan, and Drummond), Plaintiffs contend that the Duke employees and officials are liable for failing to "control and supervise" the investigation after ceding authority to Gottlieb and Nifong, and for failing to "control and supervise Gottlieb," when they "knew or should have known" of alleged past and present constitutional violations. However, on this point, the Court has already determined as a matter of state law that Duke did not have any
Finally, to the extent that this claim is asserted against the City, there is no basis to hold the City liable for "supervisory liability," and instead any claim against the City is governed by Monell and is considered in Counts 12 and 14.
Based on these determinations, the claim for supervisory liability alleged in Count 13 will be dismissed as to Brodhead, Trask, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, Best, Steel, Lange, Burness, Moneta, Dzau, Haltom, Wasiolek, Bryan, Drummond, Duke, Evans, Mihaich, Soukup, and the City. However, this claim will go forward at this stage as to Defendants Baker, Chalmers, Hodge, Russ, Council, Lamb, and Ripberger.
In Count 14, Plaintiffs assert a claim under 42 U.S.C. § 1983 for "failure to train." As the basis for this claim, Plaintiffs allege that "the City's training of Nifong, Gottlieb, Himan, and Clayton was obviously deficient" with respect to obtaining evidence, photo identification procedures, forensic science, discovery rules, use of the media, maintenance of case notes, role of a SANE, disproportionate enforcement of criminal laws, use of legal process, use of NTO process, proper division of responsibilities in investigations, and duty to act to prevent constitutional violations. (Second Am. Compl. ¶ 1142). Plaintiffs allege that this failure to train led to the violation of Plaintiffs' constitutional rights and that the City was deliberately indifferent to the need for additional training.
As discussed with respect to Count 12, municipal liability has been recognized based on inadequate training or supervision of employees if the training or supervision was so inadequate as to establish "deliberate indifference" to the rights of citizens and if the deficiency caused the constitutional violation alleged. See City of Canton v. Harris, 489 U.S. 378, 390-92, 109 S.Ct. 1197, 1206, 103 L.Ed.2d 412 (1989); see also Carter v. Morris, 164 F.3d 215, 218-19 (4th Cir.1999). In this case, the Court has already determined that Plaintiffs have stated a potential claim against the City for the underlying constitutional violations alleged in Counts 1, 2, and 5. The allegations in Count 14 are simply another basis for asserting the same claim. Therefore, the Court will allow the claim against the City in Count 14 to proceed, but only as a basis for asserting claims against the City based on the
The Court notes that although this claim is also asserted against Duke and DSI, there are no allegations as to Duke or DSI setting out the basis for the claim. Moreover, the Court has already concluded, as discussed in Count 12, that Duke is a private entity and was not acting "under color of state law" under the facts alleged. In addition, there is no basis for a claim against DSI since the underlying constitutional violations asserted against DSI in Counts 4, 6, and 7 have been dismissed. Therefore, this claim will be dismissed as to Defendants Duke and DSI, but will proceed against the City as a basis for asserting claims against the City based on the constitutional violations in Counts 1, 2, and 5.
In Count 15, Plaintiffs bring a claim under 42 U.S.C. § 1983 for "Conspiracy." As the basis for this claim, Plaintiffs allege that the named Defendants "conspired and entered into express and/or implied agreements, understandings, or meetings of the minds among themselves and others to deprive Plaintiffs of their constitutional rights by retaliating against Plaintiffs for exercising their First and Fifth Amendment rights, publicly excoriating their character and that of their teammates, falsely claiming [that] they and their teammates had history of deplorable conduct, and by charging and prosecuting the three innocent Duke lacrosse players on charges of rape, sexual assault, and kidnapping, which these Defendants knew were not supported by probable cause." (Second Am. Compl. ¶ 1149). Plaintiffs allege that "these Defendants" engaged in multiple "overt acts," including the previously-asserted constitutional violations. Plaintiffs allege that this conduct "evinces a malicious and corrupt intent to harm the Plaintiffs" and "shocks the contemporary conscience." (Second Am. Compl. ¶ 1153).
"To establish a civil conspiracy under § 1983," Plaintiffs must allege that the Defendants "acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [Plaintiffs] deprivation of a constitutional right." Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.1996). To establish such a claim, Plaintiffs must ultimately prove that "each member of the alleged conspiracy shared the same conspiratorial objective," that is, that Defendants "positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan." Id. In this case, based on the potential constitutional violations actually stated here, the allegation of an unlawful plan must have related to the unlawful seizure of Plaintiffs without probable cause using false and misleading evidence,
With respect to Defendants Nifong, Gottlieb, Himan, Levicy, Wilson, Addison, and Hodge, the Court has already discussed the substance of the alleged violations by those Defendants as set out in Counts 1, 2, and 5, including allegations of conspiracy, and there is no basis to assert an additional, separate claim against those particular Defendants in Count 15. With respect to the remaining Defendants, however, the claims asserted here in Count 15 are "group" claims asserting liability against 50 Defendants for their alleged participation in a vast conspiracy, without specifying which Defendants committed or conspired to commit which alleged constitutional violations. In their Response Briefs, Plaintiffs tie this alleged conspiracy claim to the constitutional violations alleged in Counts 6 and 7, which have been dismissed. In addition, Plaintiffs identify the conspiracy as a "conspiracy to convict." However, as discussed above, other than the substance of the claims asserted in Counts 1, 2, and 5, Plaintiffs' allegations do not state a claim for constitutional violations. Plaintiffs contend that they have sufficiently stated a claim against all 50 Defendants for conspiring together. However, the Court concludes that these general, conclusory allegations are not a sufficient basis to state a § 1983 claim against all 50 Defendants. Therefore, the general "conspiracy" claim asserted in Count 15 will be dismissed.
In Count 16, Plaintiffs bring a claim under 42 U.S.C. § 1985 for "Conspiracy" asserting four different bases for this count. First, pursuant to 42 U.S.C. § 1985(2), Plaintiffs allege that the named Defendants entered into agreements for the purpose of obstructing justice in the State of North Carolina, with the intent to deny Plaintiffs the equal protection of the law. As part of this contention, Plaintiffs assert that one or more of the Defendants engaged in overt acts that were motivated by invidious racial animus or were intended to incite racial animus or take advantage of invidious racial animus in the community. (Second Am. Compl. ¶ 1159). In addition, Plaintiffs assert that one or more of the Defendants engaged in overt acts that were motivated by or that were intended to take advantage of invidious animus based on "Plaintiffs' state citizenshipreal or perceived-as being citizens of other states only temporarily residing in Durham." (Second Am. Compl. ¶ 1160). Second, Plaintiffs allege that the named Defendants
Plaintiffs' contentions are based on the second clause of 42 U.S.C. § 1985(2), which prohibits conspiracies to obstruct justice in state court proceedings "with intent to deny any citizen the equal protection of the laws," and on a similar provision in 42 U.S.C. § 1985(3), which prohibits conspiracies to deprive, "either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(2) & (3); Kush v. Rutledge, 460 U.S. 719, 724-27, 103 S.Ct. 1483, 1486-88, 75 L.Ed.2d 413 (1983). With respect to both of these claims, "`[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Kush, 460 U.S. at 726, 103 S.Ct. at 1487 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)). The Supreme Court has interpreted these provisions of § 1985 narrowly, and has held that plaintiffs must establish as an element of the cause of action that the conspirators were motivated by a purpose to discriminate against a recognized class of persons. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-72, 113 S.Ct. 753, 758-60, 122 L.Ed.2d 34 (1993). This "discriminatory purpose" for purposes of § 1985, "implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Id. at 271-72, 113 S.Ct. at 760 (citation omitted). This discriminatory intent must be shared by all of the conspirators, and "willful blindness" to the discriminatory intent of others is insufficient to establish a claim under § 1985. See Simmons v. Poe, 47 F.3d 1370, 1378 (4th Cir.1995). Thus, to establish a claim under the provisions of § 1985 at issue in the present case, the Plaintiffs must allege that all of the conspirators were motivated by a purpose to discriminate against a recognized class of persons of which Plaintiffs were members.
Applying these standards in the present case, the Court finds that Plaintiffs have not alleged that they were in a classification entitled to protection under § 1985(2) or § 1985(3). Based on the case law set out above, it is clear that "Duke Students" or "Duke Lacrosse Team Members" are not classes entitled to protection under § 1985. Cf. McGee v. Schoolcraft Cmty. Coll., 167 Fed.Appx. 429, 435-36 (6th Cir.2006) (finding that a group of individuals seeking an advanced degree is not a class entitled to special protection under § 1985(3)); Lewin v. Cooke, 95 F.Supp.2d 513, 525-26 (E.D.Va.2000) (holding that a class of students does not qualify as a class entitled to § 1985(3) protection); Murphy v. Villanova Univ., 520 F.Supp. 560, 561-62 (E.D.Pa.1981) (same); Crain v. Martinez, No. 93-942-CIV-ORL-22, 1994 WL 391672, at *1 (M.D.Fla. July 12, 1994) (same); Naglak v. Berlin, No. 87-3427, 1988 WL 30920, at *4 (E.D.Pa. March 30, 1988) (same); see also Upah v. Thornton Dev. Auth., 632 F.Supp. 1279, 1281 (D.Colo.1986) (holding that a class composed of out-of-state residents is not a class within the protection of § 1985(3)); Korotki v. Goughan, 597 F.Supp. 1365, 1374 (D.Md.1984) (same); Ford v. Green Giant Co., 560 F.Supp. 275, 277-78 (W.D.Wash.1983) (same).
Plaintiffs contend that they have alleged race discrimination as white plaintiffs. However, the § 1985 claims based on this
Second, even if the Fourth Circuit decided to extend § 1985 to additional classes of persons, including `white plaintiffs' as a class, Plaintiffs here have not sufficiently alleged facts in support of such a claim. When a plaintiff attempts to assert a conspiracy claim pursuant to § 1985(2) and § 1985(3), the Fourth Circuit has made clear that the purported conspiracy must be alleged in more than just a "conclusory manner," and must include allegations of "concrete supporting facts." Simmons, 47 F.3d at 1377. "[C]ourts have thus required that plaintiffs alleging unlawful intent in conspiracy claims under § 1985(3) or § 1983 plead specific facts in a nonconclusory fashion to survive a motion to dismiss." Gooden v. Howard County, 954 F.2d 960, 969-70 (4th Cir.1992); see also Jenkins v. Trs. of Sandhills Cmty. Coll., 259 F.Supp.2d 432, 445 (M.D.N.C.2003). In this case, the Court finds that the facts alleged in Plaintiffs' Second Amended Complaint would state a claim only for discrimination against them as "Duke Students." Thus, Plaintiffs do not allege any facts that would support the contention that Defendants intended to discriminate against whites as a class, or intended to injure Plaintiffs or deprive them of their rights because they were white. See Bray, 506 U.S. at 268-72, 113 S.Ct. at 758-60 (holding that plaintiffs must establish as an element of the cause of action that the conspirators were motivated by a purpose to discriminate against a recognized class of persons). Plaintiffs contend that "one or more Defendants" engaged in acts that were "motived by invidious racial animus, intended to incite and then galvanize invidious racial animus against Plaintiffs in the Durham community and/or were intended to take advantage of the invidious racial animus that these Defendants had fomented in the Durham community against Plaintiffs." (Second Am. Compl. ¶ 1159, 1163). However, the allegations in the Second Amended Complaint do not support
In addition, to the extent that Plaintiffs allege that one or more Defendants engaged in overt acts that were motivated by or that were intended to take advantage of invidious animus based on Plaintiffs' state citizenship "real or perceived" as being "citizens of other states only temporarily residing in Durham," the Court concludes that Plaintiffs' factual allegations support the contention, at most, that they were discriminated against as "Duke Students," regardless of where they were from, as discussed in greater detail with respect to Count 10. Therefore, the Court concludes that Plaintiffs have failed to state a claim under § 1985(2) or § 1985(3) because Plaintiffs are not members of a "recognized class of persons" entitled to protection under § 1985 and because even if they were members of a recognized class of persons, they have failed to sufficiently allege racial or other class-based invidiously discriminatory animus as the basis of the alleged conspirators' action.
Finally, the Court notes that as part of Count 16, Plaintiffs have included an allegation that the Defendants entered into agreements among themselves to elicit false statements from Plaintiffs and other witnesses by force, intimidation, and threats. Plaintiffs in their Response Briefs indicate that this claim is brought pursuant to the second clause of 42 U.S.C. § 1985(2), which as discussed above, prohibits conspiracies to obstruct justice in state court proceedings "with intent to deny any citizen the equal protection of the laws." See 42 U.S.C. § 1985(2); Kush, 460 U.S. at 724-27, 103 S.Ct. at 1486-88. However, Plaintiffs have failed to allege racial or other class-based invidiously discriminatory animus, and cannot state a claim under the second clause of 42 U.S.C. § 1985(2), so this claim is properly dismissed.
In Count 17, Plaintiffs bring a claim under 42 U.S.C. § 1986 for "Failure to Intervene." As the basis for this claim, Plaintiffs allege that various Defendants had the power to prevent the wrongs conspired to be committed by themselves and other Defendants in violation of 42 U.S.C. § 1985, but neglected or refused to exercise such power.
In Count 18, Plaintiffs bring claims for common law obstruction of justice and conspiracy. As the basis for this claim, Plaintiffs allege that Gottlieb, Himan, Wilson, Nifong, Meehan, Clark, and DSI obstructed justice by conspiring to manufacture and by manufacturing false and misleading reports of forensic testing, and that Gottlieb, Himan, Wilson, Nifong, and Steel obstructed justice by conspiring to manufacture and manufacturing false and misleading investigative reports, and that Gottlieb, Himan, Wilson, Nifong, Steel, Dzau, Manly, Arico, Levicy, Duke Health, and Duke obstructed justice by conspiring to manufacture and manufacturing false and misleading forensic medical records and reports. Plaintiffs further allege that Gottlieb, Himan, Wilson, Nifong, Meehan, Clark, and DSI obstructed justice by conspiring to deprive Plaintiffs of copies of exonerating DNA test results, and that Gottlieb, Himan, Wilson, and Nifong conspired to obstruct justice and obstructed justice by intimidating and attempting to intimidate Plaintiffs and other witnesses. Plaintiffs also allege that Nifong, Gottlieb, and Himan obstructed justice by manipulating witness identification procedures and by making false public statements. Plaintiffs further allege that Steel, Brodhead, Dzau, and Burness obstructed public justice by making plans to conceal their participation in the conspiracies alleged in the Second Amended Complaint, in order to avoid potential civil liability to Plaintiffs or their teammates.
"Obstruction of justice" is a criminal offense under North Carolina General Statutes § 14-221 through § 14-227. It is also a common law tort in North Carolina. Under North Carolina common law, "`[i]t is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice.'" Jones v. City of Durham, 183 N.C. App. 57, 59, 643 S.E.2d 631, 633 (2007) (quoting Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33, 588 S.E.2d 20,
In the present case, Defendants generally contend that a claim for obstruction of justice may only be raised with respect to conduct in a civil lawsuit, not with respect to conduct surrounding a potential criminal investigation. However, the North Carolina Supreme Court in In re Kivett recognized that an "attempt to prevent the convening of the grand jury would support a charge of common law obstruction of justice." In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983); see also State v. Wright, 696 S.E.2d 832, 835 (N.C.Ct.App.2010) (noting that "common law obstruction of justice extends beyond interference with criminal proceedings" (emphasis added)); Henry, 310 N.C. at 87, 310 S.E.2d at 334 (recognizing potential obstruction of justice claim even if alleged conduct occurred while no legal proceedings were pending or actually threatened). Therefore, the Court will not interpret this claim more narrowly than the state courts have done, and will not rule out the possibility that a claim could exist for common law obstruction of justice for creation of false evidence or destruction of evidence for the purpose of impeding the justice system, even if the conduct occurred as part of a criminal investigation. Moreover, even if the state courts would ultimately require that the alleged obstruction of justice occur in connection with a civil proceeding, Plaintiffs assert that the obstruction of justice alleged in this case included destruction and fabrication of evidence to prevent its use in future lawsuits or to "cover-up" misconduct and hinder Plaintiffs' ability to bring a future claim. Defendants contend that Plaintiffs have not alleged facts to state a claim that Defendants' alleged conduct actually obstructed, impeded, or hindered any aspect of the claim, but the Court concludes that Plaintiffs have alleged significant misconduct in the creation of false and misleading evidence and destruction or alteration of potential evidence, and further analysis of these issues would require consideration of factual issues more appropriately considered at summary judgment to determine if sufficient evidence is presented in support of the claim. Therefore, the Court concludes that Plaintiffs have stated a state tort claim for obstruction of justice at this stage.
However, general allegations of a "conspiracy" are not sufficient to impose
However, the Court further concludes that the allegations against Arico and Manly are conclusory allegations asserting that they participated in a conspiracy with multiple other Defendants, without specific factual allegations as to what conduct each of them engaged in as the basis for this claim. (Second Am. Compl. ¶ 913, 1215). The Court concludes that these allegations are insufficient to state a plausible claim that Arico and Manly participated in the alleged obstruction of justice, and the claims against Arico and Manly will therefore be dismissed.
Therefore, the claim for Obstruction of Justice will go forward as to Defendants Levicy, Nifong, Gottlieb, Himan, Wilson, Lamb, Clark, Meehan, Steel, Brodhead, Dzau, and Burness, but will be dismissed as to the remaining designated individual Defendants. In addition, to the
As a result, the Motions to Dismiss Count 18 will be granted in part and denied in part. Specifically, the claims alleged in Count 18 will go forward as to Defendants Levicy, Nifong,
In Count 19, Plaintiffs assert a claim for common law abuse of process and conspiracy. As the basis for this claim, Plaintiffs allege that Nifong, Gottlieb, Himan, and Wilson manufactured false evidence for the NTO affidavit, that Nifong, Gottlieb, and Himan utilized the NTO process "for purposes of launching the case into the public spotlight," that Nifong, Hodge, and Addison made false and misleading statements, that Gottlieb, Nifong, Levicy, Arico, Manly, Private Diagnostic, Duke Health, and Duke agreed to produce fabricated medical records and affirmed Levicy's false statements, and that Dzau failed to correct these fabrications. (Second Am. Compl. ¶ 1204-1208).
Under North Carolina law, "[a]buse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ.... The distinctive nature of an action for abuse of process is the improper use of process after it has been issued, and not
In the present case, Plaintiffs have not alleged any facts to state a claim for the malicious misuse or misapplication of the NTO after its issuance. To the extent that Plaintiffs allege misconduct in connection with the NTO, the Court has recognized potential claims in Counts 1, 2, 5, and 18, to the extent that the alleged misconduct meets the elements for those claims. However, the Court concludes that there is no allegation of improper use of process sufficient to state a claim for abuse of process under North Carolina law. Therefore, the Motions to Dismiss as to Count 19 will be granted, and the claim asserted in Count 19 will be dismissed.
In Count 20, Plaintiffs assert a common law claim for intentional infliction of emotional
Under North Carolina law, "liability arises under the tort of intentional infliction of emotional distress when a defendant's conduct exceeds all bounds of decency tolerated by society and the conduct causes mental distress of a very serious kind." West v. King's Dep't Store, Inc., 321 N.C. 698, 704, 365 S.E.2d 621, 625 (1988). "The essential elements of an action for intentional infliction of emotional distress are `1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.'" Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)). With respect to the first element, conduct is "extreme and outrageous" when it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (1986). With respect to the second element, "[a] defendant is liable for this tort when he `desires to inflict severe emotional distress ... [or] knows that such distress is certain, or substantially certain, to result from his conduct ... [or] where he acts recklessly ... in deliberate disregard of a high degree of probability that the emotional distress will follow' and the mental distress does in fact result." Dickens v. Puryear, 302 N.C. 437, 449, 276 S.E.2d 325, 333 (1981) (quoting Restatement (Second) of Torts § 46 cmt. i (1965)). With respect to the third element, "the term `severe emotional distress' means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Waddle, 331 N.C. at 83, 414 S.E.2d at 27 (quoting Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990)). "Humiliation and worry are not enough." Jolly v. Acad. Collection Serv., 400 F.Supp.2d 851, 866 (M.D.N.C.2005). The North Carolina Supreme Court has noted that "[e]motional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea," but "[i]t is only where it is extreme that the liability arises." Waddle, 331 N.C. 73, 84, 414 S.E.2d 22, 27 (1992) (emphasis in original); see also Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 451, 579 S.E.2d 505, 509 (2003) (applying this standard and noting that "[e]ven assuming, arguendo, that some issues are `too obvious to dispute,'
In the present case, with respect to the requirement that Plaintiffs have suffered "severe emotional distress," the Court notes that in the Second Amended Complaint, Plaintiffs do not include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs individually. Indeed, the Second Amended Complaint does not include any specific identification of any particular Plaintiff's mental or emotional condition or the nature of his emotional distress. With respect to this issue, this Court has previously dismissed claims for intentional infliction of emotional distress ("IIED") where the complaint included only a conclusory statement of damages, without any "factual allegations regarding the type, manner, or degree of severe emotional distress [the plaintiff] experienced." Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580, 585 (M.D.N.C. 2001); see also Vogler v. Countrywide Home Loans, Inc., No. 1:10CV370, 2010 WL 3394034, at *9 (M.D.N.C. Aug. 26, 2010) (dismissing claim as insufficient where "[p]laintiffs assert that they suffered severe emotional distress, but do not allege any facts in support of this assertion"); Baucom v. Cabarrus Eye Ctr., P.A., No. 1:06CV209, 2007 WL 1074663, at *5 (M.D.N.C. Apr. 4, 2007) (noting that "[a]lthough the amended complaint makes the conclusory statement that Defendant's actions caused `great emotional distress,' Plaintiff does not allege any facts or conditions from which she suffered to support this motion"); cf. Holleman v. Aiken, 193 N.C. App. 484, 501, 668 S.E.2d 579, 590 (2008) (concluding that the plaintiff had failed to allege a claim for IIED where the "plaintiff has failed to make any specific allegations as [to] the nature of her severe emotional distress"); Soderlund v. Kuch, 143 N.C. App. 361, 371, 546 S.E.2d 632, 639 (2001) ("The crux of establishing `severe emotional distress' is that the emotional or mental disorder may generally be diagnosed by professionals trained to do so," even if an actual diagnosis has not been made); Fox-Kirk v. Hannon, 142 N.C. App. 267, 281, 542 S.E.2d 346, 356 (2001) (holding that a claim for infliction of emotional distress was "not justiciable" where, at the time of the filing of the complaint, the plaintiff "had not sought any medical treatment or received any diagnosis for any condition that could support a claim for severe emotional distress").
In the present case, Plaintiffs contend that they "suffered and continue to suffer diagnosable emotional and mental conditions causing Plaintiffs disabling emotional, mental and/or physical harm," but a "label and conclusion" or "naked assertion" will not suffice under the pleading standards set out in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Plaintiffs have failed to include any factual allegations as to each Plaintiff's emotional or mental disorders, condition, or diagnosis, in order to state a claim that each of them suffered from severe emotional distress. Plaintiffs also failed to sufficiently allege a link between any emotional or mental disorder or condition and the specific misconduct alleged in this claim.
In Count 21, Plaintiffs assert a claim under state law for breach of contract. As the basis for this claim, Plaintiffs allege that Duke and the Plaintiffs entered into a contractual relationship, and that Duke breached that contract by failing to provide them with certain substantive and procedural safeguards provided in the Student Bulletin and Student Code of Conduct. Specifically, Plaintiffs allege that they were suspended and that the suspensions were imposed without following the procedures provided in the Bulletin and Code of Conduct for disciplinary proceedings. Plaintiffs also allege that Duke breached the contract by condoning and ratifying harassment of Plaintiffs by faculty, administrators, and staff.
Under North Carolina law, "[t]he elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract." Parker v. Glosson, 182 N.C. App. 229, 232, 641 S.E.2d 735, 737 (2007) (internal quotations omitted). "No contract is formed without an agreement to which at least two parties manifest an intent to be bound." Id.; see also Elliott v. Duke Univ., Inc., 66 N.C. App. 590, 595, 311 S.E.2d 632, 636 (1984) (noting that a contract does not exist if "one party simply believes that a contract exists, but there is no meeting of the minds."); Horton v. Humble Oil & Ref. Co., 255 N.C. 675, 679, 122 S.E.2d 716, 719 (1961) (noting that a contract must be "definite and certain or capable of being made so" such that the parties "assent to the same thing, in the same sense"). Thus, a contract exists only if there is mutual intent to contract and an agreement on sufficiently definite terms to be enforceable. In the educational context, the North Carolina Court of Appeals has recognized that a student can, in some circumstances, bring a claim against a college or university for breach of contract. See Ryan v. Univ. of N.C. Hosps., 128 N.C. App. 300, 301, 494 S.E.2d 789, 790 (1998) (citing Ross v. Creighton Univ., 957 F.2d 410,
Applying these rules in the academic context, courts in this district have repeatedly concluded that a university's academic bulletins and policies cannot be the basis of a breach of contract claim unless the bulletin or policy provision is a specific, enforceable promise that is incorporated into the terms of a contract between the university and the student. See Love v. Duke Univ., 776 F.Supp. 1070, 1075 (M.D.N.C.1991) (finding that the academic bulletin was not a binding contract between a student and the university), aff'd, 959 F.2d 231; Guiliani v. Duke Univ., No. 1:08CV502, 2010 WL 1292321, *7-8 (M.D.N.C. Mar. 30, 2010) (dismissing breach of contract claim where the student did not allege the existence of a contract that specifically incorporated the university's handbooks and policy manuals into a contract); Mercer v. Duke Univ., No. 1:97CV959 (M.D.N.C. Sept 28, 2000) (concluding that nondiscrimination policy in the student handbook did not constitute a contract between a student-athlete and the university); see also Tibbetts v. Yale Corp., 47 Fed.Appx. 648, 656 (4th Cir.2002) (concluding that provisions of the Yale Student Handbook were "not a contract, but merely a university policy promoting free expression"); Vurimindi v. Fuqua Sch. of Bus., No. 10-234, 2010 WL 3419568, at *6 (E.D.Pa. Aug. 25, 2010) (finding that student had no cognizable breach of contract claim under North Carolina law against a university for failure to prevent harassment by classmates, because "school publications are not generally a valid source of contract" and "[a]ttending a college or university does not warrant a student to file a breach-of-contract suit whenever he or she feels that the experience has not lived up to broad expectations that he or she may have developed after reading materials promulgated by the school's administrators, admissions office, or public relations department"); Gally v. Columbia Univ., 22 F.Supp.2d 199, 208 (S.D.N.Y.1998) (holding that the fact that a professor "may have been harsh or even belittling to plaintiff does not create a valid cause of action" for breach of a non-discrimination policy in the Code of Conduct, since such claims would "open the floodgates to a slew of claims by students" and are "better left to the sound handling of school administrators"); cf. Ryan, 128 N.C.App. at 302, 494 S.E.2d at 791 (allowing breach of contract claim to proceed based on identifiable contractual provision specifically incorporated into an agreement regarding employment and medical residency).
In the present case, considering first Plaintiffs' claims for breach of contract by condoning and ratifying harassment of Plaintiffs by faculty, administrators, and staff, there are no factual allegations to support the contention that any general policy against harassment created any specific, enforceable
However, with respect to Plaintiffs' breach of contract claim for failing to follow promised disciplinary procedures, Plaintiffs contend that the Code of Conduct included specific, potentially enforceable provisions outlining certain procedures to be followed before a student would be suspended for violation of the Code of Conduct. For example, as to Plaintiff McFadyen, Plaintiffs contend that Duke imposed an interim suspension under the Code of Conduct, but that McFadyen did not receive notice of the provision he was charged with violating, that he did not receive a hearing within 3 days or an informal review by a 3-person committee as provided in the Bulletin, and that he was not provided with the procedural safeguards set out in the Bulletin. Although a breach of contract claim would not allow for review of the substance of the disciplinary proceedings, since that is a matter left to educational discretion, a breach of contract claim could potentially reach the limited inquiry of whether Duke failed to follow promised procedures for imposing discipline (particularly suspension) under the Code of Conduct. See Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir.2007) (noting that a student's relationship to his university is based in contract, and "if the university explicitly promises an appeal process in disciplinary matters, that process must be carried out in line with the student's reasonable expectations"). Therefore, the Court will allow this aspect of Plaintiffs' breach of contract claim to proceed, but only against Duke and only on this limited basis with regard to the failure to follow promised procedures in the disciplinary process. However, the Court will not entertain a substantive challenge to Duke's disciplinary decision or otherwise open up any type of "educational malpractice" claim. The Court will look closely at summary judgment to determine if Plaintiffs have presented evidence of a breach of a specifically enforceable, procedural promise.
Based on all of these determinations, the Court concludes that the breach of contract claims against the individual Defendants Steel, Brodhead, Lange, Moneta, and Bryan, will be dismissed. In addition, the breach of contract claim against Duke will proceed only on a limited basis with regard to the alleged failure to follow promised procedures in the disciplinary process. The other bases for the breach of contract claim against Duke will be dismissed.
In Count 22, Plaintiffs bring a state law claim for invasion of privacy against Duke and various Duke employees. As the basis for the claim, Plaintiffs assert that Duke, acting through its employees, intruded upon Plaintiffs' seclusion or private affairs by (1) invading their homes; (2) collecting and disseminating their financial and educational (Duke Card) records; (3) opening their private e-mail accounts; and (4) subjecting them to harassment on campus and in their homes. Although this claim is asserted against Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, Haltom, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, and Best individually, Plaintiffs do not allege which
The North Carolina Supreme Court has identified four types of claims for invasion of privacy: "(1) appropriation, for the defendant's advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (3) public disclosure of embarrassing private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye." Renwick v. News & Observer Publ'g Co., 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984). However, North Carolina does not recognize the third and fourth types of these claims. See id. at 323, 312 S.E.2d at 412; Miller v. Brooks, 123 N.C. App. 20, 25, 472 S.E.2d 350, 354 (1996); see also Sabrowski v. Albani-Bayeux, Inc., 1:02CV00728, 2003 WL 23018827, at *10 (M.D.N.C. Dec. 19, 2003). With respect to the first type of claim, Plaintiffs in this case do not assert a claim for appropriation of name or likeness. Therefore, Plaintiffs in this case are attempting to assert the second type of claim, intrusion upon seclusion. North Carolina courts have held that intrusion upon seclusion is "the intentional intrusion physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns... [where] the intrusion would be highly offensive to a reasonable person." Toomer v. Garrett, 155 N.C. App. 462, 479, 574 S.E.2d 76, 90 (2002) (internal quotations omitted). "[The] tort does not depend upon any publicity given a plaintiff or his affairs but generally consists of an intentional physical or sensory interference with, or prying into, a person's solitude or seclusion or his private affairs. Some examples of intrusion include physically invading a person's home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another." Burgess v. Busby, 142 N.C. App. 393, 405-06, 544 S.E.2d 4, 11 (2001) (internal citation omitted) (quoting Hall v. Post, 85 N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987), rev'd on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988)).
With respect to the claim alleged in Count 22, Plaintiffs assert this claim against Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, Haltom, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, and Best individually. However, Plaintiffs do not allege any factual basis to assert a plausible claim that any of these named Defendants physically invaded Plaintiffs' residences or directly engaged in any conduct that would constitute an intrusion upon seclusion under state law. Instead, Plaintiffs base this claim on the protests that occurred at Plaintiffs' residences and on campus, the media coverage, and the harassment by other students and faculty members on and off campus. However, Plaintiffs do not state a plausible claim that any of the named Defendants themselves participated in the protests or other alleged conduct, or otherwise physically invaded upon Plaintiffs' privacy or seclusion. Plaintiffs generally contend that other students and faculty members engaged in this conduct, but there is not a sufficient basis to hold the named Defendants responsible for an intrusion upon seclusion allegedly perpetrated by other students, faculty members, or members of the media. Therefore, Plaintiffs have failed to state a claim against Steel, Brodhead, Lange, Trask, Burness, Moneta, Dzau, Haltom, Dawkins, Graves, Dean, Humphries, Cooper, Garber, Schwab, Fleming, and Best for intrusion upon seclusion.
As discussed with respect to Count 2, Plaintiffs do allege that Duke Police Officer Smith observed the execution of the search warrant for McFadyen's dorm room. However, Plaintiffs do not allege that Smith actually entered McFadyen's room. Therefore, the alleged conduct by Smith, observing Durham Police execute a search warrant, does not state a claim for intrusion upon seclusion. Plaintiffs also contend that Duke Police officers assisted Himan and Gottlieb in gaining access to the dorm building where most of the sophomore team members lived. However, Plaintiffs do not allege that any Duke Defendant entered into any students' residence or dorm room. Instead, this allegation relates to conduct by the Durham Investigators. Moreover, Plaintiffs fail to provide any details regarding this alleged intrusion, and the only specific allegation is that Gottlieb and Himan "cornered Michael Young (who is not a Plaintiff in this case), and coaxed him into his room" and questioned him regarding who was at the party. Therefore, the Court concludes that Plaintiffs have failed to state a claim for intrusion upon seclusion against Duke or the other named Defendants for "invading their homes."
Plaintiffs also contend that the collection and release of their "financial and educational records" could be an intrusion upon seclusion. However, Plaintiffs do not have a reasonable expectation of privacy in a record of their public comings and goings or in information submitted to a third party. United States v. Knotts, 460 U.S. 276, 280, 103 S.Ct. 1081, 1084-85, 75 L.Ed.2d 55 (1983); United States v. Miller, 425 U.S. 435, 442-43, 96 S.Ct. 1619, 1623-24, 48 L.Ed.2d 71 (1976). To the extent that Plaintiff may be contending that release of that information violated the Family Educational Rights and Privacy Act ("FERPA"), there is no private right of action under FERPA, and a violation of FERPA does not create a state tort claim for invasion of privacy. Plaintiffs also contend that opening their private e-mail accounts was an intrusion upon seclusion, but Plaintiffs do not present factual allegations sufficient to state a plausible claim against Duke for opening Plaintiffs' e-mail accounts.
Therefore, the Court concludes that Plaintiffs have failed in any respect to
In Count 23, Plaintiffs assert a state common law claim for breach of fiduciary duty against various Duke and City employees. As the basis for this claim, Plaintiffs allege that they were in a fiduciary relationship with Steel, Drummond, Dawkins, Moneta, Bryan, and Duke, because those Defendants were in a "position of special confidence and trust" with regard to Plaintiffs' financial and educational records and e-mail accounts. (Second Am. Compl. ¶ 1237). Plaintiffs further contend that this relation of trust and confidence imposed a fiduciary duty on the Defendants to protect Plaintiffs' accounts from unauthorized disclosure and to notify Plaintiffs of any disclosure.
"To state a claim for breach of fiduciary duty, a plaintiff must allege that a fiduciary relationship existed and that the fiduciary failed to `act in good faith and with due regard to [plaintiff's] interests[.]'" Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 70, 614 S.E.2d 328, 337 (2005) (citation omitted). However, the student-administrator relationship is not generally a fiduciary relationship. The North Carolina Court of Appeals has held that interactions between "educators/supervisors" and medical residents do not create a fiduciary relationship, because "[a]lthough defendants were plaintiff's teachers and advisors, they also had to serve other interests" including the objectives of the institution and the interests
Plaintiffs nevertheless contend that a fiduciary relationship exists between them and Duke as keeper of their "educational and financial records." Specifically, Plaintiffs contend that "[f]ederal banking laws and state banking laws required Duke University to safeguard the privacy of Plaintiffs' Duke Card Account transactions." (Second Am. Compl. ¶ 1240). To the extent Plaintiffs are claiming the existence of a fiduciary relationship based on the Family Educational Rights and Privacy Act ("FERPA"), the Court notes that the provisions of FERPA, 20 U.S.C. § 1232g, "prohibit the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons." See Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 122 S.Ct. 2268, 2271, 153 L.Ed.2d 309 (2002). However, FERPA does not establish a fiduciary relationship, and the Supreme Court has clearly held that there is no private right of action under FERPA. Therefore, the Court concludes that a violation of FERPA does not create a state tort claim for breach of fiduciary duty.
Plaintiffs nevertheless contend in their briefing that this claim is based on violation of the North Carolina Privacy Act, N.C. Gen.Stat. § 53B-1 to 10. However, that statute only applies to "financial institutions" that are "principally engaged in the business of lending money or receiving or soliciting money on deposit" and under that statute, a "financial record" is a record held by such an institution N.C. Gen.Stat. § 53B-2. Therefore, it does not appear that this statute would apply to Duke. Moreover, there is no legal basis to conclude that this statute creates fiduciary relationship between a university and its students that would support a state common law claim for breach of fiduciary duty. Therefore, the Court concludes that Plaintiffs have failed to state a claim for breach of fiduciary duty.
In addition, the Court notes that Plaintiffs cite no support for asserting a claim for breach of fiduciary duty against police officers and City officials, or for a claim of "aiding and abetting" a breach of fiduciary duty in these circumstances. In any event, since there is no claim for breach of fiduciary duty, there is also no claim for "aiding and abetting" by the other named Defendants. Therefore, the Motions to Dismiss Count 23 will be granted and the claims alleged in Count 23 will be dismissed.
In Count 24, Plaintiffs assert a state law claim for fraud. As the basis for this claim, Plaintiffs allege that after their Duke Card information had already been provided to Durham Police, Drummond sent a letter to Plaintiffs notifying them that their Duke Card transaction records had been subpoenaed by Nifong. The letters advised Plaintiffs that they would
Under North Carolina law, "the following essential elements of actual fraud are well established: `(1) [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.'" Forbis v. Neal, 361 N.C. 519, 526-27, 649 S.E.2d 382, 387 (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)). Such a claim requires a showing that the "plaintiff acted or refrained from acting in a certain manner due to defendant's representations" and that the plaintiff's reliance on the false representations was "justified or reasonable." Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 663, 464 S.E.2d 47, 57 (1995). In cases alleging fraudulent concealment or nondisclosure, the plaintiff "must additionally allege that all or some of the defendants had a duty to disclose material information to him as silence is fraudulent only when there is a duty to speak." Breeden v. Richmond Cmty. Coll., 171 F.R.D. 189, 194 (M.D.N.C.1997). A duty to disclose may arise from the existence of a fiduciary relationship or where "one party has taken affirmative steps to conceal material facts from the other." Id. at 196. A duty to disclose may also arise in "other attendant circumstances," and in this regard North Carolina courts have recognized that while a defendant may not initially be under a duty to speak, once the defendant does speak, he is "required to make a full and fair disclosure as to the matters discussed." Shaver v. N.C. Monroe Constr. Co., 63 N.C. App. 605, 614, 306 S.E.2d 519, 525 (1983); see also Breeden, 171 F.R.D. at 194 n. 4 (noting that courts have held that "a duty to disclose in the absence of a fiduciary relationship could arise if a party makes partial ambiguous statements which require other disclosures to prevent confusion"); Wicker v. Worthy, 51 N.C. (6 Jones) 500, 1859 WL 2087, at *2 (1859) (noting that "mere silence" may not be sufficient to create a claim, but if the defendant "says or does any thing intended and calculated to create [a false] impression... he will be liable to the action"). Thus, "even if a party otherwise has no duty to disclose a particular matter, should that party speak about it, then a full and fair disclosure may be required." Breeden, 171 F.R.D. at 196.
In considering whether Plaintiffs have sufficiently alleged a claim of fraud in the present case, the Court also notes that under Federal Rule of Civil Procedure 9(b), "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). Generally, to satisfy this requirement, a plaintiff must identify the time, the place, and the contents of the allegedly false statements, the identity of the person making the representation,
Based on these standards and the allegations set out in the Second Amended Complaint, the Court concludes that Plaintiffs have sufficiently alleged a claim for fraud against Duke, based on the allegations against Drummond, Smith, Graves, and Dean as Duke employees. In the Second Amended Complaint, Plaintiffs allege that Drummond, Smith, Graves, and Dean acted to "cover up" the prior disclosure of the Duke Card records by making a false representation or concealment of a material fact in the letters that Drummond sent to Plaintiffs. Specifically, Plaintiffs allege that Drummond, Smith, Graves, and Dean knew that the Duke Card Records had previously been disclosed to Durham police, and that Drummond nevertheless sent the letters implicitly representing that the Duke Card reports had not been previously disclosed. Plaintiffs have alleged that the misrepresentation was intended to deceive in order to "cover up" and avoid potential liability for the previous disclosure. Plaintiffs allege that the letters did in fact deceive the recipients, causing them to incur specific expenses that they would not otherwise have incurred. Consistent with Rule 9, Plaintiffs have alleged the time, place, and content of the false representations, based on the letters that were sent to the players and their counsel on or about June 1, 2006. To the extent that this claim is based on a fraudulent omission, Plaintiffs have identified the general content of the information that was withheld and the reason for its materiality, and the identity of those who failed to make such disclosures. Plaintiffs have also alleged the relationship and events giving rise to the duty to speak, based on the actions of Drummond in undertaking to send the letters. Of course, it will ultimately be Plaintiffs' burden to prove all of
Therefore, the Motions to Dismiss Count 24 will be denied, and the claim asserted in Count 24 will go forward as to Defendants Smith, Graves, Dean, Drummond, and Duke.
In Count 25, Plaintiffs assert a state common law claim for negligence against several of the Durham Police Officers in their "individual and official capacities" and against the City. As the basis for this claim, Plaintiffs allege that Gottlieb, Himan, Addison, Michael, Russ, and Hodge owed Plaintiffs a duty of care with respect to "public statements" and with respect to the "investigation of Mangum's allegations," but failed to exercise due care, causing injury to Plaintiffs. (Second Am. Compl. ¶ 1262-1263).
This claim was asserted against the individually named Defendants in both their official and individual capacities, but Plaintiffs concede that the "official capacity" claims are duplicative of the claim against the City and may be dismissed. With respect to the "individual capacity" claims, the individual Defendants have raised the defense of public official immunity to the extent that the claims are asserted against them in their individual capacities. "The public immunity doctrine protects public officials from individual liability for negligence in the performance of their governmental or discretionary duties." Campbell v. Anderson, 156 N.C. App. 371, 376, 576 S.E.2d 726, 730 (2003); see also Thomas v. Sellers, 142 N.C. App. 310, 313, 542 S.E.2d 283, 286 (2001) (noting that under state law, a public officer is not liable in his individual capacity unless his conduct is "malicious, corrupt, or outside the scope of his official authority"); Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996). The named Defendants therefore contend that any state law negligence claims against them in their individual capacities are barred by public official immunity. In their Responses, Plaintiffs contend that "much of Supervising Defendants' conduct was inspired by a malicious, and corrupt conduct" and that public official immunity should not apply. (Pl.'s Resp., Doc. #78, at 44). However, the claims asserted in Count 25 are claims for negligence, not for intentional torts, and Plaintiffs have not presented any sufficient reason why public official immunity would not apply to claims for negligence against these public officials. Therefore, the "individual capacity" claims asserted in Count 25 will be dismissed on the basis of public official immunity.
However, to the extent that this claim is asserted against the City, the Court concludes that this claim should go forward at
In Count 26, Plaintiffs assert a state common law claim for negligence against the Durham Police Supervisors, named as Defendants in this Count, in their "individual and official capacities" and against the City. As the basis for this claim, Plaintiffs allege that the Supervisors and the City owed Plaintiffs a duty to use due care in
As with the previous Count, this claim is asserted against the individually-named Defendants in both their official and individual capacities. However, as noted above, the individual Defendants have raised the defense of public official immunity to the extent that the claims are asserted against them in their individual capacities, noting that "[t]he public immunity doctrine protects public officials from individual liability for negligence in the performance of their governmental or discretionary duties." Campbell v. Anderson, 156 N.C. App. 371, 376, 576 S.E.2d 726, 730 (2003); see also Thomas v. Sellers, 142 N.C. App. 310, 313, 542 S.E.2d 283, 286 (2001); Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996). In their Responses, Plaintiffs do not dispute this contention as to Count 26, and Plaintiffs do not oppose the Motions to Dismiss as to Count 26 with respect to the claims asserted against the individual Defendants in their individual capacities.
In Count 27, Plaintiffs assert a state common law claim for negligent infliction of emotional distress against several of the Durham Police Officers in their "individual and official capacities" and against the City and Duke. As the basis for this claim, Plaintiffs allege that Addison, Michael, Hodge, Chalmers, the City, and Duke acted individually and in concert to "subject Plaintiffs to national and international public infamy," that Gottlieb, Himan, Hodge, Ripberger, Lamb, Chalmers, and the City acted individually to manufacture false evidence and conceal exculpatory evidence, and that Gottlieb, Himan, Nifong, Meehan, Clark, and DSI acted individually and in concert in violation of policies and professional standards, in failing to provide Plaintiffs with the DNA test results.
In order to state a claim for Negligent Infliction of Emotional Distress ("NIED") under North Carolina law, "a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress ..., and (3) the conduct did in fact cause the plaintiff severe emotional distress." McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 582-83 (1998) (quoting Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990), reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990)). Thus, to state a claim for NIED, Plaintiffs must allege a sufficient basis to support the contention that they each suffered "severe emotional distress" under North Carolina law, and that the "severe emotional distress was the foreseeable and proximate result" of Defendants' alleged negligence. Id. at 645, 496 S.E.2d at 583. As with a claim for intentional infliction of emotional distress, "severe emotional distress" requires an "emotional or mental disorder ... which may be generally recognized and diagnosed by professionals trained to do so." Id. However, Plaintiffs have failed to include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs, and the Second Amended Complaint does not include any specific identification of any particular Plaintiff's mental or emotional condition or the nature of their emotional distress. Cf. Holleman v. Aiken, 193 N.C. App. 484, 502, 668 S.E.2d 579, 591 (2008) (dismissing NIED claim because "plaintiff does not make any specific factual allegation as [to] her `severe emotional distress'"); Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580, 585 (M.D.N.C. 2001). Therefore, Defendants' Motions to Dismiss will be granted as to Count 27, and Plaintiffs' claims for negligent infliction
In Count 28, Plaintiffs assert a state common law claim for negligent infliction of emotional distress against several of the Durham Police Officers in their "individual and official capacities" and against the City and Nifong. As the basis for this claim, Plaintiffs allege that the named Defendants
As discussed above, in order to state a claim for Negligent Infliction of Emotional Distress ("NIED") under North Carolina law, Plaintiffs must allege a sufficient basis to support the contention that they each suffered "severe emotional distress" under North Carolina law, and that the "severe emotional distress was the foreseeable and proximate result" of Defendants' alleged negligence. McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 583 (1998). As with a claim for intentional infliction of emotional distress, "severe emotional distress" requires an "emotional or mental disorder ... which may be generally recognized and diagnosed by professionals trained to do so." Id. However, Plaintiffs have failed to include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs, and the Second Amended Complaint does not include any specific identification of any particular Plaintiff's mental or emotional condition or the nature of their emotional distress. Cf. Holleman v. Aiken, 193 N.C. App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580, 585 (M.D.N.C.2001). Therefore, Defendants' Motions to Dismiss will be granted as to Count 28, and Plaintiffs' claims for negligent infliction of emotional distress in Count 28 will be dismissed.
In Count 29, Plaintiffs assert a state common law claim for negligence
In Count 30, Plaintiffs assert a state common law claim for negligence against Duke and all of the Duke-related Defendants. As the basis for this claim, Plaintiffs allege that Duke owed them "a duty of care to warn and otherwise affirmatively act to protect Plaintiffs from harm" by virtue of their "unique relationships" as students and student-athletes. (Second Am. Compl. ¶ 1302). Plaintiffs allege that a special relationship of "mutual benefit" existed because they were student-athletes, and that Duke therefore required to "help and/or protect the Plaintiffs." (Second Am. Compl. ¶ 1302). Plaintiffs allege that the named Defendants breached the duty of care owed to Plaintiffs by "failing to act with respect to the known and foreseeable dangers," failing to advise Plaintiffs to seek qualified, competent legal counsel, failing to provide a competent supervisor to oversee the investigation and intervene to prevent Gottlieb's efforts, failing to notify Plaintiffs' parents of the accusations, failing to safeguard e-mail accounts and other records, and failing to correct false and misleading statements made by Duke faculty and staff. (Second Am. Compl. ¶ 1303). Plaintiffs further allege that the individual Defendants' negligence was the product of Duke's negligent hiring, retention, supervision, and training.
Under North Carolina law, a plaintiff states a claim for negligence if he alleges sufficient facts to establish "(1) that there has been a failure to exercise proper
Based on this authority, the Court concludes that Duke was not in a "special relationship'" with the lacrosse team members based on their status as students, because under North Carolina law, the student-university relationship "does not constitute a special relationship giving rise to a duty of care." In addition, although Duke was potentially in a "special relationship" with lacrosse team members related to their participation in lacrosse team events, that "special relationship" would not extend outside of the lacrosse team context. Thus, any "special relationship" that may have existed in the lacrosse team context did not transform Duke into an "insurer of the safety" of team members in all other facets of student life. In this case, the allegations asserted in Count 30 are based on Duke's alleged failure to protect Plaintiffs from harm by failing to intervene in a Durham Police investigation, failing to notify Plaintiffs' parents of the investigation, failing to correct statements made by faculty members and failing to safeguard Plaintiffs' student information. These allegations are outside of any University-related lacrosse team function and do not relate to any participation in University-sponsored lacrosse team events. As such, the allegations are outside the scope of any "special relationship" that may have existed between team members and Duke based on their status as lacrosse team members. Therefore, the Court concludes that the claims alleged in Count 30 are outside of any "special relationship" that may have existed, and Duke did not
In addition, to the extent that Plaintiffs' negligence claim is based on failure to provide competent advice to Plaintiffs, the North Carolina Court of Appeals in Davidson recognized the possibility of a negligence claim based on a "voluntary undertaking" when the university negligently failed to provide sufficient advice or safety information prior to practice. See Davidson, 142 N.C.App. at 558-59, 543 S.E.2d at 929-30. In that case, the court held that the university "voluntarily undertook to advise and educate the cheerleaders regarding safety," and this "voluntary undertaking" established a duty of care upon the University to reasonably advise and educate the squad members regarding safety. Id. at 558, 543 S.E.2d at 929. However, due to significant policy concerns, courts have generally declined to recognize a duty of care between a university advisor and a student for academic advice or guidance. See Hendricks v. Clemson Univ., 353 S.C. 449, 578 S.E.2d 711, 715 (S.C.2003) (cited with approval in Ryan v. Univ. of N.C. Hosps., 168 N.C. App. 729, 2005 WL 465554, at *4 (2005) (table opinion)). For the same reasons, courts have declined to recognize claims for "educational malpractice" given the "policy concerns with recognizing an actionable duty of care owed from educators to students: (1) the lack of a satisfactory standard of care by which to evaluate educators, (2) the inherent uncertainties of the cause and nature of damages, and (3) the potential for a flood of litigation against already beleaguered schools." Id.; see also Thomas v. Charlotte-Mecklenburg Bd. of Educ., 3:06CV238-MU, 2006 WL 3257051, at *1 (W.D.N.C. Nov. 9, 2006) ("North Carolina does not have an action for educational malpractice."); Gupta v. New Britain Gen. Hosp., 239 Conn. 574, 687 A.2d 111, 119 (1996) ("[C]ourts have almost universally held that claims of `educational malpractice' are not cognizable."); Key v. Coryell, 86 Ark.App. 334, 185 S.W.3d 98, 106 (2004) ("[A] cause of action seeking damages for acts of negligence in the educational process is precluded by considerations of public policy."); Miller v. Loyola Univ. of New Orleans, 829 So.2d 1057, 1060 (La.Ct.App.2002) ("The great weight of authority generally holds that the law recognizes no cause of action for `educational malpractice', either in tort or contract."). Thus, courts have concluded that "recognizing a duty flowing from advisors to students is not required by any precedent and would be unwise, considering the great potential for embroiling schools in litigation that such recognition would create." Hendricks, 578 S.E.2d at 715; Brown v. Compton Unified Sch. Dist., 68 Cal.App.4th 114, 80 Cal.Rptr.2d 171, 172 (1998) ("To hold [advisors and administrators] to an actionable `duty of care,' in the discharge of their academic functions, would expose them to the tort claims — real or imagined — of disaffected students and parents in countless numbers" and "[t]he ultimate consequences, in terms of public time and money, would burden them — and society — beyond calculation.").
The cases that do recognize potential liability based on a voluntary undertaking, within and outside of the school setting, do so where physical injury results from alleged negligence in the undertaking. See, e.g., Davidson, 142 N.C.App. at 558-59, 543 S.E.2d at 929-30 (recognizing potential negligence claim for physical injury suffered by cheerleader during team practice based on voluntary undertaking to advise and educate squad members regarding safety); Hendricks, 578 S.E.2d at 715 (noting that negligence claims based on voluntary undertaking "have thus far been limited to situations in which a party has
Based on this weight of authority, the Court concludes first that the university-student relationship alone does not impose an actionable duty of care on administrators or advisors in the discharge of their academic functions. In addition, to the extent that Plaintiffs contend that a duty of care nevertheless existed in the present case based on a "voluntary undertaking," this Court concludes that under North Carolina law, as set out above, a university may be held liable for negligence if it makes itself responsible for a students' physical safety in a school-related activity, and if the university's alleged negligence contributed to a physical injury to the student. However, administrators and other advisors should be free to communicate and advise students without creating potential tort liability, even if that advice turns out to be misguided or inadequate. Thus, students should not be entitled to recover on a negligence claim against an administrator or university based on the giving of poor advice. This is particularly true where, as here, the alleged injury resulting from the "voluntary undertaking" of the Defendants is economic injury, rather than physical injury. Therefore, the Court concludes that with respect to the present claim in Count 30 for allegedly negligent advice, North Carolina would not recognize a duty of an advisor or administrator to a student that would support a claim for negligence, particularly where no physical harm results.
Therefore, the Court concludes that Plaintiffs have failed to state a claim against the named Defendants as alleged in Count 30, and the claims asserted in Count 30 will be dismissed.
In Count 31, Plaintiffs bring a state law claim for negligence related to the allegations against Arico and Levicy. As the basis for this claim, Plaintiffs allege that Levicy and Arico owed Plaintiffs a duty of care with respect to making public statements and statements to law enforcement regarding Mangum's claims, and with respect to the investigation of Mangum's allegations and the provision of forensic medical evidence. Plaintiffs allege that Levicy and Arico breached their duty of care, and that Levicy and Arico were acting in the scope of their employment with Private Diagnostic, Duke Health or Duke. Plaintiffs further allege that Private Diagnostic, Duke Health or Duke breached its duty of care by assigning Levicy to conduct Mangum's examination and by failing to meet the standard of care for the provision of sexual assault examinations.
As noted above, under North Carolina law, a plaintiff states a claim for negligence if he alleges sufficient facts to
Applying this rule in the present case, the Court notes that Plaintiffs were not patients at Duke Health and did not receive any treatment or examination themselves. Instead, they are third parties attempting to assert a claim for the alleged negligence of the named Defendants. Therefore, the Court concludes that to the extent that Plaintiffs' claim for negligence in the present case is based on the quality of care provided to Mangum, including any claim based on the clinical care, diagnosis, or medical assessment by Defendants, such a claim is a medical malpractice claim and must be dismissed, because this type of claim may not be asserted by individuals who were not patients of Defendants.
The Fourth Circuit in Iodice also considered the alternative claims asserted by the plaintiffs in that case for "ordinary negligence" against the health care providers. The Fourth Circuit noted that under North Carolina law, "when a negligence claim against a health care provider does not `arise out' of the `furnishing' of `professional services,' it is not a medical malpractice claim, but rather may be brought as an ordinary negligence claim." Iodice, 289 F.3d at 276 (citing Estate of Waters, 144 N.C.App. at 103, 547 S.E.2d at 145). In such "ordinary negligence" actions, courts apply the "reasonably prudent person" standard, and "in such ordinary negligence
In this case, Plaintiffs contend that they have stated claims for ordinary negligence with respect to Levicy's statements to law enforcement, the investigation of Mangum's claims, and provision of forensic evidence, apart from any medical care provided to Mangum. However, even if the conduct alleged as to Defendant Levicy did not comply with professional standards or fell below a reasonable standard of care, Plaintiffs can only bring a negligence claim for the alleged failure to meet the standard of care if Levicy owed a duty of reasonable care to the Plaintiffs. In the Second Amended Complaint, Plaintiffs allege that Levicy owed them a "duty to use due care with respect to public statements and statements to law enforcement concerning the investigation of Mangum's claims [and] ... a duty to use due care with respect to their involvement in the investigation of Mangum's false accusations, including the provision [of] forensic medical evidence relating to the investigation." (Second Am. Compl. ¶ 1311-1312). However, the Court finds that there is no basis to support the contention that a sexual assault nurse examiner or a hospital emergency department owes a duty to the general public or to individuals who are members of the public who may subsequently be targeted during a police investigation. Plaintiffs have cited no North Carolina or Fourth Circuit cases supporting such a duty, and this Court concludes that North Carolina public policy would not support imposing such sweeping potential liability on health care professionals for providing assessments and reports to police officers.
In Count 32, Plaintiffs bring a state law claim for negligence, alleging negligent hiring, retention, supervision, training and discipline of Levicy. As the basis for this claim, Plaintiffs allege that Arico, Manly, Private Diagnostic, Duke, and Duke Health owed Plaintiffs a duty of care with respect to the hiring, training, supervision, discipline, and retention of sexual assault examiners and other personnel involved in the investigation of Mangum's claims and the preservation of records. Plaintiffs further allege that Arico, Manly, Private Diagnostic, Duke Health, or Duke negligently supervised Levicy by failing to monitor her conduct or performance, failing to provide her with proper training, and ignoring evidence of Arico and Levicy's misconduct in making false statements to the public and to investigators.
"North Carolina recognizes the existence of a claim against an employer for negligence in employing or retaining an employee whose wrongful conduct injures another." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 494, 340 S.E.2d 116, 123 (1986). This type of claim "becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment." Id. at 495, 340 S.E.2d at 124. "However, before the employer can be held liable, plaintiff must prove that the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee's incompetency." Id.
However, a claim for negligent hiring, retention, and supervision would be actionable only against the employer, not the individual supervisors. Cf. Foster v. Crandell, 181 N.C. App. 152, 170-71, 638 S.E.2d 526, 538-39 (2007) (noting that liability for negligent hiring or retention would extend only to an employer who employed an incompetent employee either as an employee or independent contractor, not to co-employees); Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F.Supp.2d 603, 609 (W.D.N.C.2008) ("North Carolina courts have determined that no claim for negligent supervision lies when the Defendant is not the employer of the individual who commits the tortious act.").
As a result of these determinations, the Motion to Dismiss will be granted in part and denied in part, and the claim asserted in Count 32 for negligent supervision will be dismissed as to Defendants Arico, Manly and Private Diagnostic,
In Count 33, Plaintiffs bring a state law claim for negligent infliction of emotional distress against the named Defendants. As the basis for this claim, Plaintiffs allege that Levicy, Arico, Manly, Private Diagnostic, Duke Health, and Duke acted individually and in concert to manufacture false evidence and conceal exculpatory forensic medical evidence, and that they violated guidelines and regulations and departed from the professional standard of care. Plaintiffs allege that as a result, Plaintiffs "have suffered and continue to suffer from diagnosable emotional and mental conditions causing disabling emotional, mental, and physical harm." (Second Am. Compl. ¶ 1331).
As discussed above, in order to state a claim for Negligent Infliction of Emotional Distress ("NIED") under North Carolina law, Plaintiffs must allege a sufficient basis to support the contention that they each suffered "severe emotional distress" under North Carolina law, and that the "severe emotional distress was the foreseeable and proximate result" of Defendants' alleged negligence. McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 583 (1998). As with a claim for intentional infliction of emotional distress, "severe emotional distress" requires an "emotional or mental disorder ... which may be generally recognized and diagnosed by professionals trained to do so." Id. However, Plaintiffs have failed to include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs, and the Second Amended Complaint does not include any specific identification of any particular Plaintiff's mental or emotional condition or the nature of their emotional distress. Cf. Holleman v. Aiken, 193 N.C. App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580, 585 (M.D.N.C.2001). Therefore, Plaintiffs' claims for negligent infliction of emotional distress in Count 33 will be dismissed.
In Count 34, Plaintiffs assert a state law claim for negligence against Meehan, Clark, and DSI. As the basis for this claim, Plaintiffs allege that Meehan, Clark, and DSI owed Plaintiffs a duty of care with respect to DSI's involvement in the police investigation of Mangum's claims, and that Clark, Meehan, and DSI breached the duty to use due care when they agreed to omit exculpatory test results and then produced
As noted above, under North Carolina law, a plaintiff states a claim for negligence if he alleges sufficient facts to establish "(1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury." Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984); see also Estate of Mullis by Dixon v. Monroe Oil Co., 349 N.C. 196, 201, 505 S.E.2d 131, 135 (1998) (noting that a common law negligence claim has four essential elements: "duty, breach of duty, proximate cause, and damages").
However, in the present case, Plaintiffs have not identified any legally cognizable duty of care that Clark, Meehan, and DSI would owe to the Plaintiffs. According to the allegations in the Second Amended Complaint, Clark, Meehan, and DSI were operating pursuant to a request from Nifong or Durham Officials. Therefore, while Clark, Meehan, and DSI may have had an obligation to the City, that did not create a duty to others who were not parties to the agreement. North Carolina has adopted the rule from the Restatement (First) of Contracts § 145, that "`A promisor bound to the United States or to a State or municipality by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing or attempting to perform it, or of failing to do so, unless, (a) an intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences, or (b) the promisor's contract is with a municipality to render services the nonperformance of which would subject the municipality to a duty to pay damages to those injured thereby.'" Matternes v. City of Winston-Salem, 286 N.C. 1, 14-15, 209 S.E.2d 481, 488-89 (1974) (adopting the rule from the Restatement (First) of Contracts § 145 (1932)). There is no allegation here to support the conclusion that the agreement by Nifong or the City with DSI manifested an intent to compensate members of the public or that nonperformance of the contract would subject the City to damages. Cf. Walker v. City of Durham, 158 N.C. App. 747, 582 S.E.2d 80, 2003 WL 21499222, at *2 (2003) (table opinion) (finding no liability for City for negligent handling or destruction of evidence or for failing to conduct DNA tests). Therefore, the Court concludes that Clark, Meehan, and DSI did not owe a duty of care to Plaintiffs, and Plaintiffs cannot recover from Clark, Meehan, or DSI for simple negligence.
In Count 35, Plaintiffs assert a state law claim for negligence, alleging negligent supervision, hiring, training, discipline and retention as to the named Defendants. Specifically, Plaintiffs allege that Clark and DSI negligently hired, supervised, and trained Meehan, and that Clark, Meehan and DSI negligently hired, supervised, retained,
As discussed above, "North Carolina recognizes the existence of a claim against an employer for negligence in employing or retaining an employee whose wrongful conduct injures another." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 494, 340 S.E.2d 116, 123 (1986). This type of claim "becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment." Id. at 495, 340 S.E.2d at 124. "However, before the employer can be held liable, plaintiff must prove that the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee's incompetency." Id.
In the present case, the Court has concluded that many of the claims against Clark and Meehan should be dismissed, and therefore no negligent supervision claim can be raised as to those dismissed claims. However, the Court has also concluded that the claims for obstruction of justice are going forward as to Defendants Clark and Meehan. The claim for obstruction of justice is also going forward against DSI on the basis of respondeat superior liability. As discussed above, a negligent supervision claim may be asserted as an alternative to respondeat superior liability under state law, and applies even if the employee was not acting within the scope of his employment, if the employer knew or had reason to know of the employee's incompetency. Id. Therefore, the Court will not dismiss the claim asserted in Count 35 for negligent supervision to the extent that it is asserted against DSI for negligent supervision of Clark and Meehan.
However, a claim for negligent hiring, retention, and supervision would be actionable only against the employer, not the individual supervisors. Cf. Foster v. Crandell, 181 N.C. App. 152, 170-71, 638 S.E.2d 526, 538-39 (2007) (noting that liability for negligent hiring or retention would extend only to an employer who employed an incompetent employee either as an employee or independent contractor, not to co-employees); Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F.Supp.2d 603, 609 (W.D.N.C.2008) ("North Carolina courts have determined that no claim for negligent supervision lies when the Defendant is not the employer of the individual who commits the tortious act."). Therefore, this claim is properly dismissed as to Clark and Meehan. Therefore, the Motions to Dismiss Count 35 will be granted as to Defendants Clark and Meehan individually, and those claims will be dismissed. However, the Motion to Dismiss Count 35 will be denied as to DSI, their employer, and that claim will go forward at this time.
In Count 36, Plaintiffs assert a state law claim for negligent infliction of emotional distress against Clark, Meehan, and DSI. As the basis for this claim, Plaintiffs allege that Clark, Meehan, and DSI acted individually and in concert to manufacture false and misleading DNA reports that subjected Plaintiffs to public condemnation and outrage. Plaintiffs allege that as a result, Plaintiffs "have suffered and continue to suffer from diagnosable emotional and mental conditions causing disabling emotional, mental, and physical harm." (Second Am. Compl. ¶ 1353).
As discussed above, in order to state a claim for Negligent Infliction of Emotional Distress ("NIED") under North Carolina law, Plaintiffs must allege a sufficient basis to support the contention that they each
In Count 37, Plaintiffs assert a state law claim for negligence against Duke and against Duke Police Officers Best, Smith, and Stotsenberg. As the basis for this claim, Plaintiffs allege that the Duke Police Officers owed Plaintiffs a duty of care with respect to the investigation of Mangum's claims, and breached that duty of care by participating in the fabrication of witness statements.
In considering these claims, the Court notes that the North Carolina legislature, in authorizing Duke to enter into agreements with the City to extend the Duke Police Department's jurisdiction, specifically provided that Duke Police officers would enjoy the same "powers, rights, privileges, and immunities" as municipal law enforcement officers. See 2003 N.C. Sess. Laws 329 (local amendment to North Carolina General Statute § 116-40.5(b)); see also State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460, 462 (2006) (holding that Duke Police officers are "public officers" under state law). Therefore, the Duke Police officers sued individually would be protected by the state law immunities applicable to Durham Police officers.
With respect to the negligence claims asserted against Duke, as discussed at length above, a negligence claim "presupposes the existence of a legal relationship between the parties by which the injured party is owed a duty which either arises out of a contract or by operation of law. If there is no duty, there can be no liability." Prince v. Wright, 141 N.C. App. 262, 266, 541 S.E.2d 191, 195 (2000) (internal quotations omitted). The existence of a campus police department does not create a duty on the part of the university to prevent harm to its students or otherwise affirmatively act to protect the students. Thus, Plaintiffs have failed to sufficiently allege any legal duty that the Duke Police officers owed to them in conducting the investigation,
In Count 38, Plaintiffs assert a state law negligence claim, asserting a claim for negligent supervision against the Duke Police Supervisors named as Defendants in this Count. As the basis for this claim, Plaintiffs allege that the Duke Police Supervisors owed Plaintiffs a duty to use due care with respect to their involvement in the investigation of Mangum's allegations. Plaintiffs allege that the Duke Police Supervisors negligently hired, supervised, retained, and trained the "Day Chain of Command" by failing to "outline the proper procedures with respect to the preparation and issuance of police reports of their observations and personal knowledge obtained in the course of their duties on behalf of the Duke Police Department with respect to the conduct of a criminal investigation and the proper chain of command for investigations of criminal activity reported in their jurisdiction." (Second Am. Compl. ¶ 1363). Plaintiffs also allege that the Duke Police Supervisors negligently hired, supervised, retained, and trained DSI personnel and others who participated in or assisted in the criminal investigation of Mangum's accusations.
However, to the extent that this claim is based on the contention that the Supervisors "owed Plaintiffs a duty to use due care with respect to their involvement in the investigation of Mangum's allegations," the Court has found, as discussed at length above, that Duke did not have any duty to Plaintiffs to conduct an investigation at all, or to meet a particular standard of care in conducting the investigation to the extent they chose to do so. In addition, to the extent that this claim is based on "negligent supervision" of an employee, before an employer can be held liable on a claim for negligent supervision, the, plaintiff must prove that "the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee's incompetency." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 495, 340 S.E.2d 116, 124 (1986). However, all of the allegations in Count 38 relate to negligent supervision and training with respect to proper preparation of police reports or following the proper "chain of command," and there are no underlying torts in this case that state a claim against Duke Police employees for failing to properly file police reports or follow a proper chain of command. As discussed above, Duke Police did not owe Plaintiffs a duty to file police reports or follow a certain chain of command, and therefore Plaintiffs cannot state a claim for negligence on this basis.
Finally, to the extent that this claim is based on negligent supervision of DSI, the Court finds that Plaintiffs cannot state a claim against Duke for "negligent supervision" of DSI or its employees. Duke had no obligation to supervise DSI or its employees, and a claim for negligent supervision or retention is a claim against an employer, not a third party. Cf. Foster v. Crandell, 181 N.C. App. 152, 170-71, 638 S.E.2d 526, 538-39 (2007) (noting that liability for negligent hiring or retention would extend only to an employer who employed an incompetent employee either as an employee or independent contractor, not to co-employees).
In Count 39, Plaintiffs assert a state law claim for negligent infliction of emotional distress. This claim is based on Plaintiffs' contention that the named Defendants and other Duke Police officers, acting individually and in concert, manufactured false and misleading witness statements and concealed their personal knowledge of evidence of Plaintiffs' innocence. Plaintiffs allege that Duke Police officers subjected Plaintiffs to the threat and fear of prosecution and subjected them to public condemnation. Plaintiffs allege that as a result, Plaintiffs "have suffered and continue to suffer from diagnosable emotional and mental conditions causing disabling emotional, mental, and physical harm." (Second Am. Compl. ¶ 1371).
As discussed above, in order to state a claim for Negligent Infliction of Emotional Distress ("NIED") under North Carolina law, Plaintiffs must allege a sufficient basis to support the contention that they each suffered "severe emotional distress" under North Carolina law, and that the "severe emotional distress was the foreseeable and proximate result" of Defendants' alleged negligence. McAllister v. Khie Sem Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 583 (1998). As with a claim for intentional infliction of emotional distress, "severe emotional distress" requires an "emotional or mental disorder ... which may be generally recognized and diagnosed by professionals trained to do so." Id. However, Plaintiffs have failed to include any specific allegations of emotional or mental disorders or severe and disabling emotional or mental conditions suffered by any of the Plaintiffs, and the Second Amended Complaint does not include any specific identification of any particular Plaintiff's mental or emotional condition or the nature of their emotional distress. Cf. Holleman v. Aiken, 193 N.C. App. 484, 502, 668 S.E.2d 579, 591 (2008); Swaim v. Westchester Acad., Inc., 170 F.Supp.2d 580, 585 (M.D.N.C.2001). Therefore, Plaintiffs' claims for negligent infliction of emotional distress in Count 39 will be dismissed.
In Count 40, Plaintiffs assert a state law negligence claim, alleging "negligent entrustment" against Duke, the Duke Police, and the Duke Police Supervisors named as Defendants in this Count. As the basis for this claim, Plaintiffs allege that Duke and the Duke Police Department "negligently entrusted the Duke Police Department's primary investigative and law enforcement authority and its official policymaking authority with respect to the investigation of Mangum's allegations to Nifong, Gottlieb, Himan, Clayton, Addison, Michael, and the Durham Police." (Second Am. Compl. ¶ 1374). Plaintiffs allege that Duke and the Duke Police had a duty to exercise due care in any delegation of their primary jurisdictional responsibility and authority with respect to the investigation of Mangum's claims, and that they breached that
Under North Carolina law, "[n]egligent entrustment is established when the owner of an automobile `entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver[,]' who is `likely to cause injury to others in its use[.]' Based on his own negligence, the owner is `liable for any resulting injury or damage proximately caused by the borrower's negligence.'" See Tart v. Martin, 353 N.C. 252, 254, 540 S.E.2d 332, 334 (2000) (citations omitted). These claims have been extended to include negligent entrustment of a firearm. See, e.g., Lane v. Chatham, 251 N.C. 400, 405, 111 S.E.2d 598, 603 (1959). Thus, claims for negligent entrustment arise against an owner of a firearm or an automobile who negligently permitted a third party to use or have the firearm or automobile.
Based on this case law, there is simply no legal basis for a claim of "negligent entrustment" of an investigation under North Carolina law. Moreover, as discussed with respect to Count 29, the Court has already concluded that, as a matter of law, the Durham Police had complete statutory authority under North Carolina law, on campus and off. See N.C. Gen.Stat. § 15A-402; § 160A-286. The Jurisdictional Agreement between the Durham Police and Duke Police could not reduce the Durham Police Department's statutory authority, nor could it give the Duke Police any authority over the Durham Police, even on campus or in other areas around campus, regardless of whether the Duke Police had "primary jurisdiction" of an area under the Agreement. To the extent that Plaintiffs allege that the Duke Police had authority over the Durham Police or that the Duke Police delegated authority to Nifong or to the Durham Police, those are legal conclusions that are inconsistent with North Carolina law and that the Court is not bound to accept.
Having considered Plaintiffs' contentions, the Court concludes that North Carolina courts would not recognize a claim for negligent entrustment against a University or its police force for failing to intervene or interfere with a municipality's exercise of its statutory police powers. Therefore, Defendants' Motion to Dismiss as to Count 40 will be granted, and the claims asserted in Count 40 will be dismissed.
Finally, in Count 41, Plaintiffs bring a claim under Article I and Article IX of the North Carolina Constitution, alleging that all of the foregoing acts and conduct by employees of the Durham Police Department and Duke Police Department constituted willful abuses of police powers and deprived Plaintiffs of their rights under the state constitution. Plaintiffs note that they "plead this direct cause of action under the North Carolina Constitution in the alternative to Plaintiffs' state-law claims should those causes of action be barred in whole or part or otherwise fail to provide a complete and adequate state law remedy for the wrongs committed by the Defendants and their agents and employees." (Second Am. Compl. ¶ 1385).
To the extent that this claim is asserted against the City, the Court notes that there are several claims going forward in this case against the City, including state law claims for obstruction of justice, negligence, and negligent supervision with respect to Counts 18, 25, and 26 that will not be dismissed on a Motion to Dismiss.
After the Motion for Summary Judgment was filed, the North Carolina Supreme Court issued a decision in Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009), concluding that a claim may potentially be asserted under the state constitution if other state law claims would be barred by governmental immunity. Therefore, in response, Plaintiffs subsequently added the claim in Count 41 as an alternative claim, should it ultimately be determined that the state law claims would otherwise be barred by governmental immunity.
In their renewed Motions to Dismiss, Defendants contend that Count 41 should be dismissed because Plaintiffs cannot state a claim under the North Carolina constitution. Defendants contend that Plaintiffs have not alleged any constitutional violation and that Plaintiffs have other "adequate remedies" at state law. Under North Carolina law, a claim under the state constitution may only be asserted when there is no other adequate remedy under state law. See id.; see also Corum v. Univ. of N.C., 330 N.C. 761, 782-86 413 S.E.2d 276, 289-92 (1992). Thus, to assert a direct constitutional claim, "a plaintiff must allege that no adequate state remedy exists to provide relief for the injury." Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428 (2010). "An adequate state remedy exists if, assuming the plaintiff's claim is successful, the remedy would compensate the plaintiff for the same injury alleged in the direct constitutional claim." Estate of Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911, 915-16 (2000), rev'd in part on other grounds, 354 N.C. 327, 554 S.E.2d 629 (2001). Moreover, an adequate remedy is one that "provide[s] the possibility of relief under the circumstances." Craig, 363 N.C. at 340, 678 S.E.2d at 355. Thus, "to be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim." Id. at 339-40, 678 S.E.2d at 355.
In Craig, the Supreme Court held that where governmental immunity bars a common law negligence claim, that negligence claim does not provide an adequate remedy at state law. Id. The court further held that when a tort remedy is barred by governmental immunity, a "plaintiff may move forward in the alternative, bringing his colorable claims directly under [the] State Constitution based on the same facts that formed the basis for his common law negligence claim." Id. at 340, 678 S.E.2d at 355. The court noted that the "holding does not predetermine the likelihood that plaintiff will win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case. Rather, it simply ensures that an adequate remedy must provide the possibility of relief under
In the present case, unresolved questions remain with respect to whether there are other adequate remedies under state law, particularly in light of the City's assertion of governmental immunity. Therefore, to the extent that Defendants contend that Count 41 should be dismissed because there are alternative remedies, the Court will deny the Motion to Dismiss as to Count 41, and allow it to go forward as a potential alternative claim should the City ultimately prevail on its governmental immunity defense.
Moreover, since these claims are going forward on an alternative basis, the Court concludes that there is no need to resolve the City's governmental immunity defense on a preliminary summary judgment determination, and that determination is better made after an opportunity for discovery and consideration with all of the remaining claims and defenses together. This approach is particularly appropriate here given that claims are proceeding against the City in any event under 42 U.S.C. § 1983. Therefore, the Motion to Dismiss as to Count 41 will be denied, and the City's Motion for Summary Judgment [Doc. #86] raising the governmental immunity defense will be denied at this time without prejudice to the City raising the defense as part of a comprehensive Motion for Summary Judgment at the close of discovery.
However, to the extent that this claim is asserted against Duke, the Court concludes that Plaintiffs cannot assert this "alternative" claim against Duke under the Supreme Court's decision in Craig because Duke has not claimed a governmental immunity defense. Moreover, the Court concludes that Plaintiffs cannot state a claim against Duke for "abuses of police power" and deprivations of right under the state constitution in any event because individual rights under the state constitution are only protected against encroachment by the government. See Craig, 363 N.C. at 339, 678 S.E.2d at 355. In this regard, the North Carolina Supreme Court has held that "[t]he [state] Constitution only recognizes and secures an individual's rights vis-a-vis `We, the people of the State of North Carolina,' not individual members of that body politic. Of course, the State may only act through its duly elected and appointed officials. Consequently, it is the state officials, acting in their official capacities, that are obligated to conduct themselves in accordance with the Constitution. Therefore, plaintiff may assert his freedom of speech right only against state officials, sued in their official capacity." Corum, 330 N.C. at 788, 413 S.E.2d at 293. As discussed at length above, the Court has already determined that Duke was not a "state actor" acting "under color of state law" for purposes of the § 1983 claims under the U.S. Constitution, and for the same reasons the Court likewise concludes that Duke is not liable for alleged violations of the state constitution. Therefore, Count 41 will be dismissed as to Duke.
For the reasons discussed, the Motion to Dismiss Count 41 will be granted as to Duke, and the claim asserted against Duke will be dismissed. However, the Motion to Dismiss Count 41 will be denied as to the City, and the claim against the City will go forward at this time as a potential alternative claim should the City ultimately prevail on its governmental immunity defense. In addition, the Court concludes that, based on the foregoing analysis, there is no need to resolve the City's governmental immunity defense on a preliminary summary judgment determination, and therefore, the City's Motion for Summary Judgment [Doc. #86] raising the governmental
Having undertaken this comprehensive review of the 41 claims asserted in this case against the various 50 Defendants, the Court concludes that the Motions to Dismiss will be granted in part and denied in part as set out herein. In summary, Counts 1, 2, and 5 will go forward under 42 U.S.C. § 1983 for alleged constitutional violations. The claims asserted in Counts 1 and 2 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendment for unlawful searches and seizures without probable cause based on the Non-Testimonial Order and Search Warrant that were allegedly obtained through the intentional or reckless use of false or misleading evidence or material omissions designed to mislead the magistrate judge. The claims asserted in Count 5 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourteenth Amendment based on alleged false and stigmatizing statements by the government in connection with the alleged Fourth Amendment violations in Counts 1 and 2. With respect to these claims, to the extent that Defendants contend that there was no constitutional violation because probable cause would still exist to support the searches and seizure, even if the allegedly false and misleading statements are removed and the alleged material omissions are included, the Court has concluded that this contention cannot be resolved on a motion to dismiss in light of the Plaintiffs' allegations here. Such an inquiry is fact-intensive in the present case given the number of and nature of the alleged misrepresentations and omissions. Therefore, the Court concludes that this issue is more appropriately considered on an evidentiary record after discovery.
These claims for the alleged constitutional violations in Counts 1 and 2 are going forward as to Defendants Nifong
The remaining claims asserted under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 and § 1986, including all of the claims in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, and 17 do not state plausible, legally viable claims, and will be dismissed.
With respect to the state law claims, the Court concludes that with respect to Count 18, Plaintiffs have stated a state law claim for obstruction of justice against Defendants Nifong, Gottlieb, Himan, Wilson, Clark, Lamb, Meehan, Levicy, Steel, Brodhead, Dzau, and Burness, with potential respondeat superior liability against the City, DSI, Duke, and Duke Health. As an alternative to respondeat superior under state law, Plaintiffs have also stated a claim for negligent supervision against Duke Health and Duke in Count 32 and against DSI in Count 35. In addition, Plaintiffs have stated a claim in Count 21 against Duke for breach of contract, but limited only to the allegation that Duke imposed disciplinary measures against Plaintiffs, specifically suspension, without providing them the process that was promised. Plaintiffs have also stated a claim in Count 24 for fraud against Defendants Smith, Graves, Dean, Drummond, and Duke, based on allegations that Drummond sent letters to Plaintiffs informing them that Duke had received a subpoena relating to Plaintiffs' Duke Card information, and fraudulently misrepresented that Plaintiffs' Duke Card information had not previously been provided to Durham Police.
Finally, with respect to the state law claims against the City in Counts 18, 25, and 26, and the state constitutional claim asserted in Count 41, the Court concludes that these claims, and the governmental immunity defense raised in the City's Motion for Summary Judgment [Doc. #86], are intertwined claims, some of which are pled in the alternative, that must be resolved at summary judgment after an opportunity for discovery.
Based on this determination, the Court notes that claims are going forward as to Defendant Nifong in Counts 1, 2, 5, and 18; against Defendant Gottlieb in Counts 1, 2, 5, and 18; against Defendant Himan in Counts 1, 2, and 18; against Defendant Levicy in Counts 1, 2, and 18; against Defendant Smith in Counts 2 and 24; against Defendant Addison in Count 5; against Defendant Wilson in Counts 5 and 18; against the City in Counts 1, 2, and 5 (based on the allegations in Counts 12 and 14), as well as in Counts 18, 25, 26, and 41; against Defendants Hodge, Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 1, 2, 5, and 13, plus Count 18 as to Defendant Lamb; against Defendants Clark, Meehan, and DSI in Count 18, plus Count 35 against Defendant DSI; against Defendants Steel, Brodhead, Dzau and Burness in Count 18; against Defendants Graves, Dean, and Drummond in Count 24; against Defendant Duke Health in Counts 18 and 32; and against Defendant Duke in Counts 18, 21,
Having undertaken this comprehensive review of the 41 claims asserted in this case, the Court is compelled to note that while § 1983 cases are often complex and involve multiple Defendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein. The Western District of Virginia noted similar concerns recently in a § 1983 case pending there, stating that: "There is no question but that [the] Complaint is extravagant not only in its length (29 pages and 114 numbered paragraphs), but also in its tone, containing numerous underlinings and italics for emphasis and provocative bold headings, such as, "Part of a Larger Conspiracy?" and, "Things Go From Bad To Worse"." Surely Iqbal does not require such spin and one wonders what counsel's aim is in drafting such a pleading. "It certainly does not help to persuade the court." Jackson v. Brickey, No. 1:10CV00060, 771 F.Supp.2d 593, 607 n. 4, 2011 WL 652735, at *12 n. 4 (W.D.Va. 2011). These concerns are substantially greater in the present case, where Plaintiffs have seen fit to file not 29 pages and 114 numbered paragraphs, but 428 pages and 1,388 numbered paragraphs, with dramatic rhetoric and sweeping accusations against a "Consortium" of 50 Defendants, most of which is not relevant to the actual legally-recognized claims that may be available. Indeed, Plaintiffs' potentially valid claims risk being lost in the sheer volume of the Second Amended Complaint,
However, the Court is also compelled to note that the allegations in the Second Amended Complaint that are going forward, particularly as to Counts 1, 2, and 5, set out allegations of significant abuses of government power. Indeed, the intentional or reckless use of false or misleading evidence before a magistrate judge to obtain a warrant and effect a search and seizure is exactly the type of "unreasonable" search and seizure the Fourth Amendment is designed to protect against. In this regard, it has been noted that "`if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.'" Washington v. Wilmore, 407 F.3d 274, 285 (Shedd, J., concurring) (quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir.2004)). In addition, "the Supreme Court has long held that a police officer violates the Fourth Amendment if, in order to obtain a warrant, he deliberately or `with reckless disregard for the truth' makes material false statements or omits material facts.... No reasonable police officer ... could believe that the Fourth Amendment permitted such conduct." Miller v. Prince George's County, 475 F.3d 621, 631-32 (4th Cir.2007) (internal citations omitted). Thus, there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen, in this case by allegedly making false and misleading representations and creating false and misleading evidence in order to obtain an NTO against all of the lacrosse team members and obtain a search warrant. This case will therefore proceed to discovery on the claims as set out above, and it will ultimately be Plaintiffs' burden to present proof in support of these claims.
IT IS THEREFORE ORDERED that the Motions to Dismiss [Doc. #167, 168, 169, 170, 171, 173, 174, 175, 176, 177, 179] are GRANTED IN PART and DENIED IN PART as set out herein. IT IS FURTHER ORDERED that the City of Durham's Motion for Summary Judgment [Doc. #86] is DENIED at this time, without prejudice to the City raising the issues asserted therein as part of a comprehensive Motion for Summary Judgment at the close of discovery.
A separate Order will be entered contemporaneously herewith.
