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Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !!
Topic Started: Mar 31 2011, 04:21 PM (10,327 Views)
jmoo

I understand that Beaty has issued a ruling. I haven't seen it but I understand there is a case that will go forward. As soon as I can get a hold of the document I'll ... do something :party:
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jmoo

223 page memorandum & opinion filed today. I'll try to download from Pacer now.
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jmoo

Starting with the conclusion.... as fast as I can.

If you have a Pacer account - opinions are free :)


CONCLUSION

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.
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Joan Foster

Please translate, someone... :rose:
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Joan Foster

Discovery!!!!

:toast: :toast: :toast:

:party:

:crh: :crh: :crh: :crh: :crh:

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jarms

Which case is he ruling on?
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jmoo

These claims for the alleged constitutional violations in Counts 1 and 2 are going forward

( Page 216 of 223)

as to Defendants Nifong92, Gottlieb, Himan, and Levicy based on allegations that they were
directly involved in the alleged Fourth Amendment violations, and as to Defendant Smith in
Count 2 on the basis of bystander liability.93 The claims in Count 5 are going forward as to
Defendants Nifong, Gottlieb, Addison, Hodge, and Wilson. The claims in Counts 1, 2, and 5
are also going forward as to the City based on the additional allegations contained in Counts 12 and 14, setting out claims for municipal liability. However, to the extent that there are claims proceeding against the City, Plaintiffs may not recover punitive damages from the City. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981). Therefore, the claim for punitive damages against the City will be dismissed. Finally, the Court will allow the § 1983 claims in Counts 1, 2, and 5 to go forward against certain of the Durham Police “supervisors,” specifically, Baker, Chalmers, Hodge, Russ, Council, Lamb, and

(pg 217)

Ripberger, based on Plaintiffs’ allegations as discussed with respect to Count 13. However, at
summary judgment, it will be Plaintiffs’ burden to “pinpoint the persons in the decision-making chain whose deliberate indifference permitted the constitutional abuses to continue unchecked,” and the Court will scrutinize evidence regarding each Defendant’s direct, individual involvement, and evidence regarding their individual intent, in order to determine whether any of them is potentially liable under § 1983 for their own conduct with respect to the alleged constitutional violations that are proceeding in this case.94 The Court notes that the § 1983 claims are not going forward as to Defendant Duke, because the Court finds that Plaintiffs have failed to allege a sufficient basis to support the contention that Duke was a “state actor.”

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

(pg 218)

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.95

However, Plaintiffs have failed to state a claim with respect to their remaining state law
claims, including all of the claims asserted in Counts 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, and 40. Therefore, all of the claims asserted in those Counts will be dismissed.

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;

(pg 219)

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, 21,96 24, and 32.

All remaining claims are dismissed, including all of the claims asserted in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, and 40, and all of the claims asserted against Defendants Humphries, Cooper, Garber, Schwab, Fleming, Best,
Stotsenberg, Lange, Trask, Moneta, Haltom, Dawkins, Wasiolek, Bryan, Private Diagnostic,
Manly, Arico, Mihaich, Evans, Soukup, Michael, Clayton, and the Duke Police Department.

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

(pg 220)

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, 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,97 and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legal
pleadings. Plaintiffs approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.

However, the Court is also compelled to note that the allegations in the Second Amended

(pg 221)

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

(pg 222)

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.
This, the 31st day of March, 2011.

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jmoo

I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
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sceptical

:jump: :jump:

Oh Happy Day!!

While I am looking forward to reading the entire opinion, Judge Beaty has done what we all hoped for-- he retained enough complaints against enough defendants to allow discovery of the major miscreants.

Discovery is on the way!! (Well, at least after the defendants appeal Beaty's ruling).

His scathing descriptions of the violations of the plaintiff's rights against unreasonable search and seizure indicate that he "gets" the case.

While he did throw out the complaints against some of the secondary defendants, this will allow the major ones to go more clearly under the microscope.

This is a tremendous victory for the former lacrosse players and their famlies.

(I personally wrote Judge Beaty about 2 weeks ago. I'd like to claim some credit for the release today, but it has obviously been in the works for a while).
Edited by sceptical, Mar 31 2011, 05:19 PM.
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sceptical

Here is the bottom line for your spreadsheet of defendants and charges:


Quote:
 
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, 21,96 24, and 32.

All remaining claims are dismissed, including all of the claims asserted in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, and 40, and all of the claims asserted against Defendants Humphries, Cooper, Garber, Schwab, Fleming, Best,
Stotsenberg, Lange, Trask, Moneta, Haltom, Dawkins, Wasiolek, Bryan, Private Diagnostic, Manly, Arico, Mihaich, Evans, Soukup, Michael, Clayton, and the Duke Police Department.
Edited by sceptical, Mar 31 2011, 05:12 PM.
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chatham
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WRAL said the students cannot receive punitive damages from the city. More at 10 and 11 news
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Payback
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"His scathing descriptions of the violations of the defendant's rights against unreasonable search and seizure indicate that he "gets" the case."

sceptical, I'm not trying to be cute: but do you mean plaintiff?

Back to reading.

Baldo and I may live to see Discovery on one count against Brodhead?
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sceptical

Quote:
 
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.


AMEN!!
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abb
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chatham
Mar 31 2011, 05:16 PM
WRAL said the students cannot receive punitive damages from the city. More at 10 and 11 news
It ain't never been about money, anyway.
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jmoo

jmoo
Mar 31 2011, 04:59 PM
I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
Actually, this opinion appears to address only the McFadyen (Ekstrand) case.

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Joan Foster

NIFONG...

Gottlieb

Himan

Levicy

Smith

Addison

Wilson

Hodge

Baker

Chalmers

Russ

Council

Lamb

Ripberger

Clark

Meehan

Steel

Brodhead

Dzau

Burness

Graves

Dean

Drummond

Duke Health

and

Duke

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sceptical

Payback
Mar 31 2011, 05:17 PM
"His scathing descriptions of the violations of the defendant's rights against unreasonable search and seizure indicate that he "gets" the case."

sceptical, I'm not trying to be cute: but do you mean plaintiff?

Back to reading.

Baldo and I may live to see Discovery on one count against Brodhead?
Payback, you are correct. I was so excited that I typed defendants instead of plaintiffs. I have edited the original post. I am honored to be corrected by such a distinguished professor of English!
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jmoo

Folks -- I have the document in .pdf format. It's 678KB.... I'm willing to try emailing if you PM me an email address.
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Payback
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Joan Foster
Mar 31 2011, 04:46 PM
Discovery!!!!

:toast: :toast: :toast:

:party:

:crh: :crh: :crh: :crh: :crh:

OK, I think I get it, or enough of it to join Joan in celebrating.

Baldo, just to be sure, what are you feeling?


:party: ?
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abb
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jmoo
Mar 31 2011, 05:19 PM
jmoo
Mar 31 2011, 04:59 PM
I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
Actually, this opinion appears to address only the McFadyen (Ekstrand) case.

May I respectfully suggest you edit the thread headline to read that discovery is moving forward.

Something like: "Duke Lacrosse Lawsuits to Move Forward, Judge Rules"

All the better for a google search to pick it up.
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abb
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jmoo
Mar 31 2011, 05:23 PM
Folks -- I have the document in .pdf format. It's 678KB.... I'm willing to try emailing if you PM me an email address.
wabbott@suddenlinkmail.com
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Payback
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sceptical
Mar 31 2011, 05:20 PM
Payback
Mar 31 2011, 05:17 PM
"His scathing descriptions of the violations of the defendant's rights against unreasonable search and seizure indicate that he "gets" the case."

sceptical, I'm not trying to be cute: but do you mean plaintiff?

Back to reading.

Baldo and I may live to see Discovery on one count against Brodhead?
Payback, you are correct. I was so excited that I typed defendants instead of plaintiffs. I have edited the original post. I am honored to be corrected by such a distinguished professor of English!
I was not trying to play schoolmaster, oh mighty sceptical, but just pushing to understand! It's an easy slip, especially when we are rushing to get the gist of the thing.

I'm getting the meaning in stages, and getting happier in stages. Baldo, tell me you are happy too and I will let go of the last nervousness.
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Payback
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Joan Foster
Mar 31 2011, 04:46 PM
Discovery!!!!

:toast: :toast: :toast:

:party:

:crh: :crh: :crh: :crh: :crh:

It's a great day when Joan is this happy!
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chatham
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And its not even a friday..... or April Fools day.
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Joan Foster

I hope the Families are satisfied. It's not all we wanted...but when I see Nifong, Levicy, Brodhead, Steel, Wlson, Gottlieb, , Meehan...it thrills me!

The Day of Reckoning. Superb!

Discovery will go forward...and there is hope that... in each INDIVIDUAL case...the full story of the moral depravity of EACH of these Cretins will be fully revealed...and become a burden for THEM to carry professionally (for those who still have a "profession")...and personally...for the rest of their lives.

Let them be shamed.

Let them be humiliated and broken in every way...as they willfully attempted to do to these innocent kids.
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chatham
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DURHAM (WTVD) -- The remainder of the Duke Lacrosse team, that was not a part of the original three team members who were charged with raping Crystal Mangum in 2006, have filed a federal lawsuit.
from
http://abclocal.go.com/wtvd/story?section=news/local&id=8046216

Second lawsuit filed in Duke Lacrosse case

The three original players were eventually cleared of the charges.

The newest lawsuit names Durham leaders, police officers, the City of Durham and Duke University. More than 20 claims in the suit have been thrown out but many more claims remain.


Among those now in the clear are several top Duke officials including John Burness, Larry Moneta and Victor Dzau. But the claims against President Richard Brodhead remain as do claims against Durham police officers Himan and Gottlieb, Private Investigator Linwood Wilson and former Durham Police Chief Steve Chalmers.

The players are suing for untold millions in the wake of the scandal and that's on top of recent reports that the three main defendants have already received millions in settlements with more in the works.

ABC11 Eyewitness News reached out to the City of Durham and a spokesperson says the City is not commenting until the attorney's office finishes its review.
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abb
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WTVD has bollixed up the story, as you can imagine.

http://abclocal.go.com/wtvd/story?section=news/local&id=8046216

Second lawsuit filed in Duke Lacrosse case
Updated at 06:18 PM today


DURHAM (WTVD) -- The remainder of the Duke Lacrosse team, that was not a part of the original three team members who were charged with raping Crystal Mangum in 2006, have filed a federal lawsuit.

The three original players were eventually cleared of the charges.

The newest lawsuit names Durham leaders, police officers, the City of Durham and Duke University. More than 20 claims in the suit have been thrown out but many more claims remain.

Among those now in the clear are several top Duke officials including John Burness, Larry Moneta and Victor Dzau. But the claims against President Richard Brodhead remain as do claims against Durham police officers Himan and Gottlieb, Private Investigator Linwood Wilson and former Durham Police Chief Steve Chalmers.

The players are suing for untold millions in the wake of the scandal and that's on top of recent reports that the three main defendants have already received millions in settlements with more in the works.

ABC11 Eyewitness News reached out to the City of Durham and a spokesperson says the City is not commenting until the attorney's office finishes its review.
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Joan Foster

"NURSE" Levicy...."DISTRICT ATTORNEY" Nifong...."PRESIDENT" Brodhead... :ber laug: :ber laug: :ber laug:

Let's hear it all..under oath.
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Joan Foster

Burness is still in, isn't he?
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sceptical

Payback
Mar 31 2011, 05:26 PM
sceptical
Mar 31 2011, 05:20 PM
Payback
Mar 31 2011, 05:17 PM
"His scathing descriptions of the violations of the defendant's rights against unreasonable search and seizure indicate that he "gets" the case."

sceptical, I'm not trying to be cute: but do you mean plaintiff?

Back to reading.

Baldo and I may live to see Discovery on one count against Brodhead?
Payback, you are correct. I was so excited that I typed defendants instead of plaintiffs. I have edited the original post. I am honored to be corrected by such a distinguished professor of English!
I was not trying to play schoolmaster, oh mighty sceptical, but just pushing to understand! It's an easy slip, especially when we are rushing to get the gist of the thing.

I'm getting the meaning in stages, and getting happier in stages. Baldo, tell me you are happy too and I will let go of the last nervousness.
I am very happy!

Ekstrand's amended complaint was extravagant in the number of defendants, the number of counts, and his language.

Judge Beaty did exactly what I had hoped-- he pared down the number of defendants and counts but allowed discovery to progress.

While the defendants may appeal, Judge Beaty ruled narrowly and I do not think the defendants will be successful on appeal.

Eventually we are definitely going to get depositions and closer to the truth.
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~J~ is in Wonderland
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~J~ is in Wonderland


IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EDWARD CARRINGTON, et al., )

)

Plaintiffs, )

)

v. ) 1:08CV119

)

DUKE UNIVERSITY, et al., )

)

Defendants. )

MEMORANDUM OPINION

This case involves 32 claims set out in a 225-page Amended Complaint [Doc. #145] by

Plaintiffs Edward Carrington, Casey J. Carroll, Michael P. Catalino, Gale Catalino, Thomas

Clute, Kevin Coleman, Joshua R. Coveleski, Edward J. Crotty, Edward S. Douglas, Kyle Dowd,

Patricia Dowd, Daniel Flannery, Richard Gibbs Fogarty, Zachary Greer, Irene Greer, Erik S.

Henkelman, Steven Henkelman, John E. Jennison, Ben Koesterer, Mark Koesterer, Joyce

Koesterer, Fred Krom, Peter J. Lamade, Adam Langley, Christopher Loftus, Daniel Loftus,

Barbara Loftus, Anthony McDevitt, Glenn Nick, Nicholas O’Hara, Lynnda O’Hara, Daniel

Oppedisano, Sam Payton, John Bradley Ross, Kenneth Sauer, III, Steve Schoeffel, Robert

Schroeder, Devon Sherwood, Daniel Theodoridis, Bret Thompson, Christopher Tkac, Tracy

Tkac, John Walsh, Jr., Michael Ward, Robert Wellington, William Wolcott, and Michael Young

(collectively, “Plaintiffs”), all of whom are former members of the Duke University men’s

lacrosse team or their parents, against Defendants Duke University (“Duke”), Duke University

Health System, Inc. (“Duke Health”), Duke President Richard Brodhead (“Brodhead”), Duke

Provost Peter Lange (“Lange”), Duke Vice President for Student Affairs Larry Moneta

(“Moneta”), Duke Senior Vice President for Public Affairs and Government Relations John

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 1 of 178

1 Plaintiffs’ Amended Complaint also asserted claims against Attorney J. Wesley

Covington (“Covington”). Mr. Covington’s Estate was later substituted as a party in this case,

and by Order dated October 15, 2010, Plaintiffs voluntarily dismissed their claims against

Marsha Covington as executrix of the Estate of John Wesley Covington. Therefore, no claims

remain against Covington or his Estate.

2

Burness (“Burness”), Duke Executive Vice President Tallman Trask (“Trask”), Duke Assistant

Vice President for Student Affairs and Dean of Students Suzanne Wasiolek (“Wasiolek”), Head

of the Duke Card Office Matthew Drummond (“Drummond”), 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 Health Nurse Tara Levicy (“Levicy”),

Duke Health Nurse Theresa Arico (“Arico”), Duke Deputy General Counsel Kate Hendricks

(“Hendricks”), Duke Chancellor for Health Affairs and President and Chief Executive Officer

of Duke University Health System, Inc. Victor Dzau (“Dzau”), the City of Durham (“the City”),

District Attorney’s Office Investigator Linwood Wilson (“Wilson”), Durham Police Department

Detective Mark Gottlieb (“Gottlieb”), Durham Police Department Investigator Benjamin

Himan (“Himan”), Durham City Manager Patrick Baker (“Baker”), Durham Chief of Police

Steven Chalmers (“Chalmers”), Deputy Chief of Police Ronald Hodge (“Hodge”), Executive

Officer to the Chief of Police Lee Russ (“Russ”), Durham Police Commander of Investigative

Services Stephen Mihaich (“Mihaich”), Durham Police Uniform Patrol Bureau Commander

Beverly Council (“Council”), Durham Police District Two Uniform Patrol Commander Jeff

Lamb (“Lamb”), Durham Police Department Lieutenant Michael Ripberger (“Ripberger”), and

Durham Police Department Spokesman David Addison (“Addison”).1



CONCLUSION

Having undertaken this comprehensive review of the 32 claims asserted in this case by

47 different Plaintiffs against 28 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 21 and 25 will go forward under 42 U.S.C. § 1983 for alleged

constitutional violations with respect to the claims by the Plaintiff Players.65 The claims asserted

in Count 21 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 that was 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 25 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 Count 21. With respect to these

§ 1983 claims, to the extent that Defendants contend that there was no constitutional violation

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 171 of 178

66 As to Defendant Levicy, the Court concludes that Plaintiffs have alleged that she

became a “state actor” by allegedly joining with Nifong, Gottlieb, and Himan to commit the

alleged constitutional violations, knowing that the NTO was not supported by probable cause

and was based on false and misleading assertions and material omissions. As with all of these

claims, it will be Plaintiffs’ burden to present proof of these allegations.

172

because probable cause would still exist to support the search 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.

The claims by the Plaintiff Players for the alleged constitutional violations in Count 21

are going forward as to Defendants Gottlieb, Himan, and Levicy based on allegations that they

were directly involved in the alleged Fourth Amendment violations.66 The claims by the Plaintiff

Players in Count 25 are going forward as to Defendants Gottlieb, Himan, Addison, and Wilson.

The claims by the Plaintiff Players in Count 21 and 25 are also going forward as to the City

based on the additional allegations contained in Count 26, setting out claims for municipal

liability. However, to the extent that there are claims proceeding against the City, Plaintiffs may

not recover punitive damages from the City. See City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981). Therefore, the claim for punitive

damages against the City will be dismissed. Finally, the Court will allow the § 1983 claims by the

Plaintiff Players in Counts 21 and 25 to go forward against the Durham Police “supervisors,”

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 172 of 178

67 In addition, special attention should be given during the discovery process to ensure

that these Supervisors are not unduly burdened in light of the potential qualified immunity

defense and the protections it affords.

173

specifically, Baker, Chalmers, Hodge, Russ, Council, Lamb, and Ripberger, based on Plaintiffs’

allegations as discussed with respect to Count 27. However, at summary judgment, it will be

Plaintiffs’ burden to “pinpoint the persons in the decision-making chain whose deliberate

indifference permitted the constitutional abuses to continue unchecked,” and the Court will

scrutinize evidence regarding each Defendant’s direct, individual involvement, and evidence

regarding their individual intent, in order to determine whether any of them is potentially liable

under § 1983 for their own conduct with respect to the alleged constitutional violations that are

proceeding in this case.67 The Court notes that the § 1983 claims are not going forward as to

Defendant Duke, because the Court finds that Plaintiffs have failed to allege a sufficient basis

to support the contention that Duke was a “state actor.”

The remaining claims asserted under 42 U.S.C. § 1983, including all of the claims in

Counts 20, 22, and 24 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 23,

Plaintiffs have stated a state law claim by the Plaintiff Players for obstruction of justice against

Defendants Gottlieb, Himan, Wilson, and Levicy, with potential respondeat superior liability against

the City, Duke, and Duke Health. As an alternative to respondeat superior under state law,

Plaintiffs have also stated a claim for negligent supervision against both Duke Health and Duke

in Count 3 and against Duke only in Count 19. In addition, Plaintiffs have stated a claim in

Count 8 by the Plaintiff Players against Duke, Drummond, Hendricks, Graves, and Dean for

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 173 of 178

68 The Court notes that as with the § 1983 claims, Plaintiffs may not recover punitive

damages against the City on these state claims. See Efird v. Riley, 342 F. Supp. 2d 413, 430

(M.D.N.C. 2004) (citing Long v. City of Charlotte, 306 N.C. 187, 208, 293 S.E.2d 101, 115

(1982)).

69 The Plaintiff Parents in this case are Gale Catalino, Patricia Dowd, Irene Greer, Steven

Henkelman, Mark Koesterer, Joyce Koesterer, Barbara Loftus, Lynnda O’Hara, and Tracy Tkac.

174

fraud, based on allegations that Defendants Drummond, Hendricks, Graves and Dean sent

letters to Plaintiffs informing them that Duke had received a subpoena relating to Plaintiffs’

Duke Card information, and in doing so fraudulently misrepresented that Plaintiffs’ Duke Card

information had not previously been provided to Durham Police. Plaintiffs have also stated a

claim by the Plaintiff Players in Count 11 for constructive fraud against Defendants Duke,

Wasiolek, Trask and Brodhead, based on claims that Duke administrators created a relationship

of trust and confidence and then abused that relationship for Duke’s benefit.

Finally, with respect to the state law claims against the City in Counts 23, 30 and 31, and

the state constitutional claim asserted in Count 32, the Court concludes that these claims, and

the governmental immunity defense raised in the City’s Motion for Summary Judgment [Doc.

#113], are intertwined claims, that are in some cases pled in the alternative, that must be

resolved at summary judgment after an opportunity for discovery, given the factual issues

raised.68

However, Plaintiffs have failed to state a claim with respect to their remaining state law

claims, including all of the claims asserted in Counts 1, 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17,

18, 28, and 29. Plaintiffs have also failed to state any claim by the Plaintiff Parents,69 and all of

the claims asserted by the Plaintiff Parents are dismissed.

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 174 of 178

70 The Court does acknowledge that the Amended Complaint in this case is roughly half

the size of the Second Amended Complaint in the related case of McFadyen, et. al v. Duke

University, et. al. While this is certainly better, it is still far too much.

175

Based on this determination, the Court notes that claims are going forward as to

Defendant Gottlieb in Counts 21, 23, and 25; against Defendant Himan in Counts 21, 23, and

25; against Defendant Levicy in Counts 21 and 23; against Defendant Addison in Count 25;

against Defendant Wilson in Counts 23 and 25; against the City in Counts 21 and 25 (based on

the allegations in Count 26), as well as in Counts 23, 30, 31, and 32; against Defendants Hodge,

Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 21, 25, and 27; against

Defendants Brodhead, Wasiolek, and Trask in Count 11; against Defendants Graves, Dean,

Hendricks, and Drummond in Count 8; against Duke Health in Counts 3 and 23; and against

Duke in Counts 3, 8, 11, 19, and 23. All remaining claims are dismissed, including all of the

claims asserted in Counts 1, 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 20, 22, 24, 28, and 29,

and all of the claims asserted against Defendants Lange, Moneta, Burness, Dzau, Mihaich, and

Arico.

Having undertaken this comprehensive review of the 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.70 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

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 175 of 178

176

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, 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 225 pages and 751 numbered paragraphs, most of

which are not relevant to the actual legally-recognized claims that may be available. As in the

other “related cases,” Plaintiffs’ potentially valid claims risk being lost in the sheer volume of the

Amended Complaint, and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive

in legal pleadings. Plaintiffs’ approach has required the Court to undertake the time-consuming

process of wading through a mass of legally unsupportable claims and extraneous factual

allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court

has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting

in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the

parties will reduce both the volume of filings and the rhetoric contained therein, and will

proceed on the remaining claims in a direct, professional manner, without requiring unnecessary

involvement from the Court.

However, the Court is also compelled to note that the allegations in the Amended

Complaint that are going forward, particularly as to Counts 21 and 25, set out allegations of

significant abuses of government power. Indeed, the intentional or reckless use of false or

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 176 of 178

177

misleading evidence before a magistrate judge to effect a search and seizure without probable

cause is exactly the type of “unreasonable” search and seizure that the Fourth Amendment was

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. 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. # 146, 147, 148,

149, 150, 151, 152, 153, and 154] 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. #113] is DENIED at this time, without prejudice to the City raising the issues

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 177 of 178

178

contained therein as part of a comprehensive Motion for Summary Judgment at the close of

discovery.

A separate Order will be entered contemporaneously herewith.

This, the 31st day of March, 2011.

United States District Judge

Case 1:08-cv-00119-JAB -WWD Document 164 Filed 03/31/11 Page 178 of 178




Edited by ~J~ is in Wonderland, Mar 31 2011, 05:45 PM.
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chatham
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So will an appeal take another couple of years?
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jmoo

abb
Mar 31 2011, 05:24 PM
jmoo
Mar 31 2011, 05:19 PM
jmoo
Mar 31 2011, 04:59 PM
I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
Actually, this opinion appears to address only the McFadyen (Ekstrand) case.

May I respectfully suggest you edit the thread headline to read that discovery is moving forward.

Something like: "Duke Lacrosse Lawsuits to Move Forward, Judge Rules"

All the better for a google search to pick it up.
Abb - is that something I can do??
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Joan Foster

From a friend....

"This is a good day! Let discovery begin!!!!!


Thank you Liestoppers!"

:toast: :toast: :toast:

Edited by Joan Foster, Mar 31 2011, 05:49 PM.
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jmoo

jmoo
Mar 31 2011, 05:46 PM
abb
Mar 31 2011, 05:24 PM
jmoo
Mar 31 2011, 05:19 PM
jmoo
Mar 31 2011, 04:59 PM
I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
Actually, this opinion appears to address only the McFadyen (Ekstrand) case.

May I respectfully suggest you edit the thread headline to read that discovery is moving forward.

Something like: "Duke Lacrosse Lawsuits to Move Forward, Judge Rules"

All the better for a google search to pick it up.
Abb - is that something I can do??
DONE !!
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chatham
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jmoo
Mar 31 2011, 05:46 PM
abb
Mar 31 2011, 05:24 PM
jmoo
Mar 31 2011, 05:19 PM
jmoo
Mar 31 2011, 04:59 PM
I believe the three federal filings/cases were combined for the purpose of this ruling. I need to break for dinner....
Actually, this opinion appears to address only the McFadyen (Ekstrand) case.

May I respectfully suggest you edit the thread headline to read that discovery is moving forward.

Something like: "Duke Lacrosse Lawsuits to Move Forward, Judge Rules"

All the better for a google search to pick it up.
Abb - is that something I can do??
JMOO... it is something only you can do since you started the thread. Look for something like edit thread and click on it.

ETA: beat me to it. lol
Edited by chatham, Mar 31 2011, 05:51 PM.
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abb
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Here's a link to the entire document.

http://lincolnparishnewsonline.files.wordpress.com/2011/03/dukelaxruling033111.pdf
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Payback
Member Avatar

I could not resist adding a comment to one of my posts on my blog:


Hershel Parker said...

On 31 March 2011 the very slow Durham judge has ruled that Count 18 against Richard H. Brodhead goes forward into DISCOVERY phase. We will see how much documentation has survived from 2006. Much may be revealed about how New Critical ignoring of the author leads right to ignoring living people as real. This I will expand upon, but what I said about Brodhead in 1984, that he was blind to human agony, Melville's agony, has proved true several times since then, in different places. Don't be hasty to dismiss my claim here about the longterm effects of the New Criticism.
March 31, 2011 3:43 PM

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sceptical

The original post was the ruling on the McFadyen suit submitted by Bob Ekstrand. There is also a second ruling on the Carrington suit which is listed above by J.

The scorecard for the Carrington suit:

Quote:
 
Based on this determination, the Court notes that claims are going forward as to

Defendant Gottlieb in Counts 21, 23, and 25; against Defendant Himan in Counts 21, 23, and

25; against Defendant Levicy in Counts 21 and 23; against Defendant Addison in Count 25;

against Defendant Wilson in Counts 23 and 25; against the City in Counts 21 and 25 (based on

the allegations in Count 26), as well as in Counts 23, 30, 31, and 32; against Defendants Hodge,

Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 21, 25, and 27; against

Defendants Brodhead, Wasiolek, and Trask in Count 11; against Defendants Graves, Dean,

Hendricks, and Drummond in Count 8; against Duke Health in Counts 3 and 23; and against

Duke in Counts 3, 8, 11, 19, and 23. All remaining claims are dismissed, including all of the

claims asserted in Counts 1, 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 20, 22, 24, 28, and 29,

and all of the claims asserted against Defendants Lange, Moneta, Burness, Dzau, Mihaich, and

Arico.

Edited by sceptical, Mar 31 2011, 05:54 PM.
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chatham
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Nothing on google yet. No one has picked it up. Need to contact the press and get it rolling.
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abb
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Well, I called Bill Anderson, but he didn't answer his home phone. Anyone know how to text him? He's got connections at Fox News.
Edited by abb, Mar 31 2011, 05:58 PM.
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chatham
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fact checker has it
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sceptical

We need to let the MSM know this a victory.

I am afrain that they will emphasize that some defendants and counts were dropped and that Durham will not have to pay punitive damages. This misses the point-- the main story is that depositions have been ordered and that the major miscreants will need to testify under oath.
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Texas Mom

Payback
Mar 31 2011, 05:23 PM
Joan Foster
Mar 31 2011, 04:46 PM
Discovery!!!!

:toast: :toast: :toast:

:party:

:crh: :crh: :crh: :crh: :crh:

OK, I think I get it, or enough of it to join Joan in celebrating.

Baldo, just to be sure, what are you feeling?


:party: ?
Hip, hip, HOORAY! I never thought I'd live long enough to see discovery take place!
:toast: :party: :cher: :cele:
:D Egr93:

(I saw it on FreeRepublic and came "home" right away.
Edited by Texas Mom, Mar 31 2011, 06:04 PM.
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Quasimodo

Quote:
 
All remaining claims are dismissed, including all of the claims asserted in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, and 40, and all of the claims asserted against Defendants Humphries, Cooper, Garber, Schwab, Fleming, Best,
Stotsenberg, Lange, Trask, Moneta, Haltom, Dawkins, Wasiolek, Bryan, Private Diagnostic,
Manly, Arico, Mihaich, Evans, Soukup, Michael, Clayton, and the Duke Police Department.


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

(pg 220)

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, 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,97 and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legal
pleadings.



Plaintiffs approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.



I'M SO SORRY YOU HAD TO READ SO MUCH, YOUR HONOR!

MAYBE THAT WAS BECAUSE OF THE COMPLEXITY OF THE CASE!



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Kerri P.
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Finally!!!

:party: :party: :party:
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jmoo

Beginning on page 50:

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”).14

In addition, Plaintiffs have raised substantial questions regarding the
constitutionality of the searches and seizures effected pursuant to the NTO in this case, both
as to the procedure that was followed and the scope of the NTO that was entered.


In considering the NTO process, the Court notes that the North Carolina state court decisions and
interpretations of the NTO process appear conflicting. On one hand, the North Carolina
Supreme Court has recognized that “[t]he invasion of a person’s body to seize blood, saliva, and hair samples is the most intrusive type of search; and a warrant authorizing the seizure of such
evidence must be based upon probable cause to believe the blood, hair, and saliva samples
constitute evidence of an offense or the identity of a person who participated in the crime.”

State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 728 (2000); see also State v. Welch, 316 N.C.
578, 585, 342 S.E.2d 789, 793 (1986) (holding that “[s ]ince the withdrawal of a blood sample is
subject to fourth amendment requirements, a search warrant must be procured before a suspect
may be required to submit to such a procedure unless probable cause and exigent circumstances
exist that would justify a warrantless search”
).

However, on the other hand, the state courts
have also indicated that “a nontestimonial identification order authorized by article 14 of chapter
15A of the General Statutes of North Carolina is an investigative tool requiring a lower standard
of suspicion that is available for the limited purpose of identifying the perpetrator of a crime.”
Grooms, 353 N.C. at 73, 540 S.E.2d at 728; see also State v. Pearson, 356 N.C. 22, 28, 566
S.E.2d 50, 54 (2002) (concluding that the “reasonable grounds” standard is “similar to the
reasonable suspicion standard applied to brief detentions” under Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Thus, it is unclear whether North Carolina courts would
interpret the state NTO statutes as authorizing a search and seizure, including seizure of blood,
hair, and saliva samples, on less than a full showing of probable cause.
15

It is also unsettled
whether such an interpretation would render the state NTO statutes unconstitutional, at least
as applied in some instances. This uncertainty is a product of unsettled U.S. Supreme Court
holdings and dicta in this area. In this regard, the U.S. Supreme Court in Davis v. Mississippi
held that the Fourth Amendment applies when police require citizens to come to a police station
for fingerprinting, but the Supreme Court left open the possibility that in the “unique nature of
the fingerprinting process” the requirements of the Fourth Amendment could be met by
“narrowly circumscribed procedures for obtaining, during the course of a criminal investigation,
the fingerprints of individuals for whom there is no probable cause to arrest.” 394 U.S. 721,
727-28, 89 S. Ct. 1394, 1387-98, 22 L. Ed. 2d 676 (1969). However, the Supreme Court has not
determined whether or when such “narrowly circumscribed procedures” could be used, although
in Davis this possibility was limited to fingerprinting, and did not include blood sampling or
other more intrusive searches. Cf. Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826,
1835, 16 L. Ed. 2d 908 (1966) (holding, with respect to blood sampling, that “search warrants
are ordinarily required for searches of dwellings, and absent an emergency, no less could be
required where intrusions into the human body are concerned”); Dunaway v. New York, 442
U.S. 200, 211-13, 99 S. Ct. 2248, 2256-57, 60 L. Ed. 2d 824 (1979) (noting that Terry v. Ohio
allows only narrowly-defined intrusions absent a showing of probable cause, and concluding that
“any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to
swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on
probable cause”). In a later case, the Supreme Court acknowledged that some states, in reliance
on the suggestion in Davis, have “enacted procedures for judicially authorized seizures for the
purpose of fingerprinting,” but the Supreme Court noted that “state courts are not in accord on
the validity of these efforts to insulate investigative seizures from Fourth Amendment
invalidation,” and the Supreme Court declined to reach any further consideration of that issue.
Hayes v. Florida, 470 U.S. 811, 817, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).

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.16

Moreover, the Court concludes that 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 to effect a citizen’s seizure. See Miller, 475 F.3d at 631-32 (“[T]he
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.” (internal citations omitted)); Brooks, 85 F.3d at
183-84.17

Thus, the Court finds that, taking the allegations as true, Plaintiffs have alleged
plausible Fourth Amendment claims as set out in Count 1, based on allegations of deliberate or
reckless submission of false and misleading evidence, which require at least some discovery so
that Plaintiffs’ claims and Defendants’ qualified immunity defense can be assessed on a factual
record beyond just the allegations in the Second Amended Complaint.


Related notes:

14 The Court notes that in addition to the “seizure” involved in being compelled to
appear at the police station, Plaintiffs have raised a Fourth Amendment challenge to the
“search” alleged in this case, which in addition to DNA sampling and “mug shot”
photographing, also required them to disrobe for close physical examination, which they
contend invaded a “reasonable expectation of privacy” and went beyond what “a person
knowingly exposes to the public.” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511,
19 L. Ed. 2d 576 (1967).

15 The Court notes that there is no question, even under the NTO procedure, that there
must be probable cause to believe that an offense has been committed. The question is only
with respect to whether there must also be probable cause to believe that the subject of the
order committed the offense or probable cause to believe that evidence of the crime will be
found by conducting the search, rather than a lesser showing of only “reasonable suspicion.”

16 The Court acknowledges, as discussed above, the unsettled law regarding whether the
search and seizure challenged here could be upheld on a showing of less than full probable
cause. The Court will allow the parties to address that issue further at summary judgment.
However, the Court concludes that there are sufficient allegations to state a plausible claim in
order to go forward at this stage.

17 The Court notes that in the context of a search or seizure conducted pursuant to a
warrant, qualified immunity is analogous to the “good faith” exception to the exclusionary rule
applied in criminal cases under United States v. Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405,
3420-21, 82 L. Ed. 2d 677(1984). See Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092,
1098, 89 L. Ed. 2d 271 (1986).
Edited by jmoo, Mar 31 2011, 06:10 PM.
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jmoo

abb
Mar 31 2011, 05:52 PM
Thanks Abb!!
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sceptical

Jmoo, is the above from the McFadyen decision or the Carrington decision?

Has the Evans decision been released?
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jmoo

Discovery!!

Best news of the year!
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