| Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !! | |
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| Tweet Topic Started: Mar 31 2011, 04:21 PM (12,252 Views) | |
| ~J~ is in Wonderland | Mar 31 2011, 05:45 PM Post #31 |
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~J~ is in Wonderland
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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 | Mar 31 2011, 05:46 PM Post #32 |
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So will an appeal take another couple of years? |
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| jmoo | Mar 31 2011, 05:46 PM Post #33 |
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Abb - is that something I can do?? |
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| Joan Foster | Mar 31 2011, 05:47 PM Post #34 |
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From a friend.... "This is a good day! Let discovery begin!!!!! Thank you Liestoppers!" Edited by Joan Foster, Mar 31 2011, 05:49 PM.
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| jmoo | Mar 31 2011, 05:50 PM Post #35 |
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DONE !! |
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| chatham | Mar 31 2011, 05:51 PM Post #36 |
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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 | Mar 31 2011, 05:52 PM Post #37 |
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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 | Mar 31 2011, 05:52 PM Post #38 |
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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 | Mar 31 2011, 05:54 PM Post #39 |
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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:
Edited by sceptical, Mar 31 2011, 05:54 PM.
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| chatham | Mar 31 2011, 05:55 PM Post #40 |
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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 | Mar 31 2011, 05:58 PM Post #41 |
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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 | Mar 31 2011, 06:00 PM Post #42 |
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fact checker has it |
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| sceptical | Mar 31 2011, 06:01 PM Post #43 |
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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 | Mar 31 2011, 06:02 PM Post #44 |
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Hip, hip, HOORAY! I never thought I'd live long enough to see discovery take place! ![]() (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 | Mar 31 2011, 06:04 PM Post #45 |
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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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