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Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !!
Topic Started: Mar 31 2011, 04:21 PM (12,251 Views)
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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jmoo

sceptical
Mar 31 2011, 06:11 PM
Jmoo, is the above from the McFadyen decision or the Carrington decision?

Has the Evans decision been released?
McFadyen
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Quasimodo

CAUTION: Not sure I have this quite right yet--doing this quickly--
but a LOT appears to have been dismissed--

'
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.





CAUSES OF ACTION .................................................................................................. 286


FIRST CAUSE OF ACTION: ......................................................................................... 286
SEARCH AND SEIZURE IN VIOLATION OF 42 U.S.C. § 1983
& CONSPIRACY .......................................................................... 286
SECOND CAUSE OF ACTION: .................................................................................... 289
SEARCH AND SEIZURE IN VIOLATION OF 42 U.S.C. § 1983
& CONSPIRACY .......................................................................... 289
THIRD CAUSE OF ACTION: ....................................................................................... 291
ABUSE OF PROCESS AND CONSPIRACY IN VIOLATION OF
42 U.S.C. § 1983 ....
........................................................................ 291
FOURTH CAUSE OF ACTION: .................................................................................... 294
DEPRIVATION OF property IN VIOLATION OF 42 U.S.C. §
1983 .....
........................................................................................... 294
FIFTH CAUSE OF ACTION: ......................................................................................... 298
FALSE PUBLIC STATEMENTS IN VIOLATION OF 42 U.S.C.
§1983 .............................................................................................. 298
SIXTH CAUSE OF ACTION: ........................................................................................ 305
MANUFACTURE OF FALSE INCULPATORY EVIDENCE &
CONSPIRACY IN VIOLATIONOF 42 U.S.C. § 1983 ................ 305
SEVENTH CAUSE OF ACTION: ................................................................................. 308
CONCEALMENT OF EXCULPATORY EVIDENCE &
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983 ............... 308
EIGHTH CAUSE OF ACTION: ..................................................................................... 310
INTERFERING WITH RIGHT ENGAGE IN POLITICAL
PROCESSES IN VIOLATION OF 42 U.S.C. § 1983 &
CONSPIRACY ............................................................................... 310
NINTH CAUSE OF ACTION:
....................................................................................... 311
rETALIATION IN VIOLATION OF 42 U.S.C. § 1983 &
CONSPIRACY ............................................................................... 311

TENTH CAUSE OF ACTION: ....................................................................................... 314


DEPRIVATION OF THE PRIVILEGES AND IMMUNITIES OF
NORTH CAROLINA CITIZENS IN VIOLATION OF 42

U.S.C. §1983 .................................................................................. 314
ELEVENTH CAUSE OF ACTION: ............................................................................... 315


FAILURE TO PREVENT DEPRIVATION OF
CONSTITUTIONAL RIGHTS IN VIOLATION OF 42

U.S.C. § 1983 ................................................................................. 315

TWELFTH CAUSE OF ACTION: ................................................................................. 322


MONELL LIABILITY FOR VIOLATIONS OF 42 USC § 1983 ........... 322


A.
City and University Policies Were the Moving Force Behind
the Deprivations of Plaintiffs’ Constitutional Rights ..................... 322


B.
Officials with Final Policymaking Authority Participated in

or Directed the Violations of Plaintiffs’ Constitutional

Rights ............................................................................................. 329


C.
Duke University and City of Durham 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. ........................................................................................ 331


THIRTEENTH CAUSE OF ACTION: ........................................................................... 346


SUPERVISORY LIABILTIY FOR VIOLATIONS OF 42 U.S.C. §
1983 ................................................................................................ 346


A.
The Failure to Control and Supervise the Investigation
Caused the Violations of Plaintiffs’ Constitutional Rights. ........... 346


B.
Durham Police Supervising Defendants’ Failure to Control

and Supervise Gottlieb Led to Violations of Plaintiffs’

Constitutional Rights. ..................................................................... 349


C.
The Durham Supervising Defendants’ Failure to Control and

Supervise Addison Led to the Violations of Plaintiffs’

Constitutional Rights ...................................................................... 351


D.
The Durham Police Supervising Defendants’ Failure to

Control and Supervise Defendant Michael Led to Violations

of Plaintiffs’ Constitutional Rights ................................................ 353


FOURTEENTH CAUSE OF ACTION: ......................................................................... 356
FAILURE TO TRAIN in VIOLATION OF 42 U.S.C. §1983 ................. 356
FIFTEENTH CAUSE OF ACTION: .............................................................................. 360
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1983 .......................... 360


SIXTEENTH CAUSE OF ACTION: .............................................................................. 365
CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985 .......................... 365
SEVENTEENTH CAUSE OF ACTION: ....................................................................... 369
FAILURE TO INTERVENE IN VIOLATION OF 42 U.S.C. §
1986 ..........
...................................................................................... 369
EIGHTEENTH CAUSE OF ACTION: ........................................................................... 375
COMMON LAW OBSTRUCTION OF JUSTICE &

CONSPIRACY ............................................................................... 375
NINETEENTH CAUSE OF ACTION: ........................................................................... 379
COMMON LAW ABUSE OF PROCESS & CONSPIRACY ................. 379


TWENTIETH CAUSE OF ACTION: ............................................................................. 381
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


AND CONSPIRACY ..................................................................... 381
TWENTY-FIRST CAUSE OF ACTION: ....................................................................... 384
BREACH OF CONTRACT ...................................................................... 384
TWENTY-SECOND CAUSE OF ACTION: ................................................................. 386

INVASION OF PRIVACY ....................................................................... 386
TWENTY-THIRD CAUSE OF ACTION: ..................................................................... 387
BREACH OF fiduciary duty & AIDING AND ABETTING ................... 387

TWENTY-FOURTH CAUSE OF ACTION: ................................................................. 391
FRAUD ..................................................................................................... 391
TWENTY-FIFTH CAUSE OF ACTION: ...................................................................... 394
NEGLIGENCE (DURHAM POLICE) ..................................................... 394


TWENTY-SIXTH CAUSE OF ACTION: ...................................................................... 395
NEGLIGENT HIRING, RETENTION, SUPERVISION,
TRAINING & DISCIPLINE (DURHAM POLICE) ..................... 395


xiii

TWENTY-SEVENTH CAUSE OF ACTION: ............................................................... 398


NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(DURHAM POLICE) .................................................................... 398
TWENTY-EIGHTH CAUSE OF ACTION:................................................................... 399

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS .................. 399
TWENTY-NINTH CAUSE OF ACTION: ..................................................................... 401
NEGLIGENCE (DUKE POLICE) ............................................................ 401
THIRTIETH CAUSE OF ACTION: ............................................................................... 404
NEGLIGENCE (DUKE) ........................................................................... 404

THIRTY-FIRST CAUSE OF ACTION: ......................................................................... 409
NEGLIGENCE (SANE)............................................................................ 409
THIRTY-SECOND CAUSE OF ACTION: .................................................................... 410
NEGLIGENT HIRING, RETENTION, SUPERVISION,
TRAINING & DISCIPLINE (SANE) ........................................... 410
THIRTY-THIRD CAUSE OF ACTION: ....................................................................... 413
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(SANE) ........................................................................................... 413
THIRTY-FOURTH CAUSE OF ACTION: .................................................................... 414
NEGLIGENCE (DNASI) .......................................................................... 414
THIRTY-FIFTH CAUSE OF ACTION: ......................................................................... 415
NEGLIGENT SUPERVISION, HIRING, TRAINING,
DISCIPLINE, AND RETENTION (DNASI) ................................ 415
THIRTY-SIXTH CAUSE OF ACTION: ........................................................................ 416
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(DNASI) ......................................................................................... 416
THIRTY-SEVENTH CAUSE OF ACTION: ................................................................. 417
NEGLIGENCE (DUKE POLICE) ............................................................ 417
THIRTY-EIGHTH CAUSE OF ACTION: ..................................................................... 419
NEGLIGENT SUPERVISION (DUKE POLICE) ................................... 419
THIRTY-NINTH CAUSE OF ACTION: ....................................................................... 420


xiv





NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(DUKE POLICE) ........................................................................... 420
FORTIETH CAUSE OF ACTION: ................................................................................ 422
NEGLIGENT ENTRUSTMENT (DUKE POLICE) ................................ 422
RULE 9(j) PRECERTIFICATION ........................................................... 425
JURY DEMAND ...................................................................................... 425
PRAYER FOR RELIEF ............................................................................ 426
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Quasimodo

Haven't looked (I'm assuming from an earlier post that this is the CARRINGTON suit?)

But is STEEL still a defendant?

Is Brodhead? Burness?


Quote:
 
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 Quasimodo, Mar 31 2011, 06:23 PM.
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sceptical

Quasi,
The glass is half full, not half empty.
There was no chance that Judge Beaty would allow all the claims to go forward, since the plaintiff's attorneys were very expansive in their charges. The plaintiffs alleged everything possible in the hope some would stick. They did, the depositions will happen, and I would not be critical some counts and defendants were dropped, as expected from the extravagant nature of the original suits.

Look at the big picture-- the major goal has been to get at the truth. These rulings by Judge Beaty advance that cause by ordering depositions by all the major conspirators.
Edited by sceptical, Mar 31 2011, 06:28 PM.
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chatham
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it mightb e less confusing if we have 2 topics. One for each suit. That way confusion is held to a minimum. Just sayin.....
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Quasimodo

Is the entire effect of this to place all of the blame on the individual police officers
who wrongfully and without probable cause got search warrants?

IE, are Gottlieb and Himan to be the scapegoats along with Nifong?

(Not sure yet.)

(I may revise my opinion of this later; but at first glance--so far--
a LOT appears to have been trimmed out of the suit,

including Arico and Manly

and the infliction of emotional distress--which I could consider a slam-dunk--

and most of Duke is off the hook (apparently)

So while I am pleased there is to be discovery,

I am not yet convinced that this is as big a victory as it might be--or SHOULD be--






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jmoo

Opinion in the Evans case has been filed... I have in .pdf (via pacer)

IV. CONCLUSION

Having undertaken this comprehensive review of the 23 claims asserted in this case, 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 3 will go forward under 42 U.S.C. § 1983 for alleged
violations of the Fourth and Fourteenth Amendment for unlawful seizures without probable
cause based on Plaintiffs’ contentions that they were arrested pursuant to indictments that were
obtained by the intentional or reckless creation of false or misleading evidence used before the
grand jury that was necessary to a finding of probable cause, or the deliberate or reckless
omission of material information that officials knew would negate probable cause.

These counts are proceeding against Defendants Nifong, Wilson, Gottlieb, Himan, Meehan, Clark,
and DSI.

Count 4 will go forward under 42 U.S.C. § 1983 for violation of the Fourteenth
Amendment based on alleged false and stigmatizing statements made in connection with the
alleged constitutional violations in Counts 1, 2, and 3. Count 4 is proceeding as to Defendants
Nifong, Addison, and Hodge.

The claims asserted in Counts 1, 2, 3, and 4 are also going
forward against the City based on the additional allegations contained in Count 5 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).31
Therefore, the claim for punitive damages against the City will be dismissed.

Finally, the Court
will allow the § 1983 claims in Counts 1, 2, 3, and 4 to go forward against the Durham Police
“Supervisory Defendants,” specifically, Baker, Chalmers, Hodge, Russ, Council, Lamb, and
Ripberger, based on Plaintiffs’ allegations as discussed with respect to Count 6. 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.32

With respect to the last
§ 1983 claim, set out in Count 7 as a claim for “Conspiracy,” the Court concludes that this
claim does not set out any separate constitutional violation, and all of the underlying claims are
already addressed with respect to Counts 1-4. Therefore, the separate general “conspiracy”
claim in Count 7 will be dismissed.

In addition, Plaintiffs’ claims in Counts 8, 9, 10, 11 and 12
asserted pursuant to 42 U.S.C. § 1985 and § 1986 fail to state a plausible, legally-viable claim and
will be dismissed.

With respect to the state law claims, the Court concludes that Plaintiffs have stated a
claim in Count 13 for malicious prosecution as to Defendants Nifong, Wilson, Himan,
Gottlieb, Clark, Meehan, and Addison.


The Court similarly concludes that Plaintiffs have stated
a claim in Count 14 for Obstruction of Justice as to Defendants Nifong, Wilson, Gottlieb,
Himan, Clark, and Meehan. Counts 13 and 14 will also go forward against the City and DSI
on the basis of respondeat superior liability
.

In addition, as an alternative to respondeat superior liability under state law, Plaintiffs have
also stated a claim for negligent supervision as to the
City in Count 17 and DSI in Count 21.

Finally, the state law claim for negligence against the City asserted in Count 16 is also
going forward at this time, as are the alternative claims asserted against the City in Count 23
under the state constitution.

With respect to the state law claims against the City in Counts 13,
14, 16, and 17, and the state constitutional claim asserted in Count 23, the Court concludes that
these claims, and the governmental immunity defense raised in the City’s Motion for Summary
Judgment [Doc. #78], are intertwined claims, some of which are pled in the alternative, that
must be resolved at summary judgment after an opportunity for discovery, given the factual
issues raised.33

However, the Court concludes that Plaintiffs have failed to state a claim for Intentional
Infliction of Emotional Distress in Count 15 or for Negligent Infliction of Emotional Distress
in Counts 18, 19, and 22, and those claims will be dismissed.

The Court also concludes that
Plaintiffs have failed to state a claim for negligence against Defendants Clark, Meehan, and DSI
as asserted in Count 20, and therefore the state law negligence claim in Count 20 will be
dismissed.

Based on this determination, the Court notes that claims are going forward as to
Defendant Nifong in Counts 1, 2, 3, 4, 13, and 14; against Defendants Gottlieb, Himan, Wilson,
Clark, Meehan, and DSI in Counts 1, 2, 3, 13, and 14, plus Count 21 as to Defendant DSI;
against Defendant Addison in Counts 4 and 13; against the City in Counts 1, 2, 3, and 4 (based
on the allegations in Count 5), as well as in Counts 13, 14, 16, 17, and 23; and against
Defendants Hodge, Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 1, 2, 3,
4, and 6.


All of the remaining claims are dismissed, including all of the claims asserted in
Counts 7, 8, 9, 10, 11, 12, 15, 18, 19, 20, and 22.

Having undertaken this comprehensive review of the claims asserted in this case, the
Court notes that this case, like many § 1983 cases, is complex and involves multiple Defendants,
requiring significant analysis, resulting in this rather extensive Memorandum Opinion.

The Court notes that of the three “related cases,” see supra note 1, this case involves the most
significant alleged constitutional deprivations, but was commendably more concise. However,
a complaint of over 150 pages, with over 570 numbered paragraphs, as in this case, is still
beyond what is necessary or appropriate under Rule 8. Review of this case, and particularly of
the related cases involving complaints that are 2 and 3 times as long, 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 the claims in all three cases. Going forward, the parties are encouraged to make every
effort to reduce the volume of filings and to avoid unnecessary rhetoric, and to proceed on the
remaining claims in a direct, professional manner, without requiring unnecessary involvement
from the Court.

Boo Hoo

The Court is also compelled to note that the allegations in the Second Amended
Complaint that are going forward, particularly as to Counts 1-3, set out allegations of significant
abuses of government power.

Indeed, the intentional use of false or misleading evidence before
a grand jury to obtain an indictment and arrest without probable cause is exactly the type of
“unreasonable” search and seizure that the Fourth Amendment was designed to protect against,
and would violate the most fundamental concepts of due process. 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 (indeed, we are unsure what due process
entails if not protection against deliberate framing under color of official sanction).’”
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 presenting the false evidence to a grand jury in order to obtain an
indictment of individuals that the officials know are innocent. The Court acknowledges the
“‘embarrassing diversity of judicial opinion’ over the composition or even existence, of a claim
for ‘malicious prosecution’ founded in § 1983.” Lambert v. Williams, 223 F.3d 257, 260 (4th
Cir. 2000). However, Defendants in this case essentially contend that this Court should take the
most restrictive view of the applicable doctrines and should conclude that no provision of the
Constitution has been violated, and that no redressable claim can be stated, when government
officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used
to indict and arrest those citizens without probable cause. This Court cannot take such a
restrictive view of the protections afforded by the Constitution.

Therefore, the Court
concludes that Plaintiffs have stated a potential violation of their constitutional rights in this
case. 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. #117, 119, 120,
121, 123, 124, 125, 126, 127 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. #78] 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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Quasimodo
Mar 31 2011, 06:29 PM
Is the entire effect of this to place all of the blame on the individual police officers
who wrongfully and without probable cause got search warrants?

IE, are Gottlieb and Himan to be the scapegoats along with Nifong?

(Not sure yet.)

(I may revise my opinion of this later; but at first glance--so far--
a LOT appears to have been trimmed out of the suit,

including Arico and Manly

and the infliction of emotional distress--which I could consider a slam-dunk--

and most of Duke is off the hook (apparently)

So while I am pleased there is to be discovery,

I am not yet convinced that this is as big a victory as it might be--or SHOULD be--






Once they get under oath, the bastards will rat the others out. They always do.
:anfigh:
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Joan Foster

Nifong...Are you woe-some tonight? Tummy cramping in fright?
Are you sorry you started this Frame?
Does your memory stray
To a long ago day
When folks didn’t sneer at your name?

When Meehan had hopes for expanding his Lab..
And Wilson had the best gig..his Sorry Self ever had?

Are you Woe-some tonight? Think of poor Dickie’s plight!
Hid from the Families AND the truth.
Now the whole world will hear
How he and Bob Steel
Thought the Innocent should stand trial “for Duke.”
And for the 88 radicals... in their biased zeal.
(Hey, the Wanted Poster might see all revealed....)


And as for our Nursey, why she’s in quite a scrape.
“The infamous ex-SANE nurse” that LIED about rape.

Are you woe-some tonight? Got some toenails to bite?
Do you wish it would all disappear?
How you strutted in court..thought the whole FRAME was Sport
Well, now it is your turn to fear.

We remember your arrogance...your detestable ploys..
What you did to Elmo, those families, those boys!

Are you woe-some tonight...yes, payback can bite.
Tell me, Mikey, are you woe-some tonight?

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http://www.wral.com/news/local/story/9366400/

Judge rules in second federal lawsuit in Duke lacrosse case
Posted: 6:03 p.m. today

A federal judge on Thursday ruled that the lawsuit filed by three members of Duke's 2006 men's lacrosse team against former Durham District Attorney Mike Nifong and others can move forward.

Ryan McFadyen, Matthew Wilson and Breck Archer filed the federal lawsuit in 2007 accusing dozens of defendants of fraud, negligence and conspiracy for pursuing the case despite evidence that the rape allegations made against members of the team were false.

The judge threw out most of the 40 claims in the lawsuit.

Allowed to move forward are four counts each against Nifong and former Durham police investigator Mark Gottleib. The counts center on whether the defendants violated the players’ rights in searching their dorm rooms and testing their DNA; whether the men made false statements in public about the unindicted players and whether the men manufactured false or misleading reports of forensic testing.

The judge dismissed all claims against the Durham Police Department and said the students can't receive punitive damages from the City of Durham.

The players are seeking a jury trial and unspecified compensation for past and future economic loss, harm to their reputations, loss of privacy and other damages.

McFadyen, Wilson and Archer were members of the lacrosse team when Crystal Mangum told police she was raped at a March 2006 team party where she was hired as a stripper.

The men were among the team's 47 members who complied with a judge's order to provide DNA samples and be photographed. The team's sole black member was not tested because Mangum said her attackers were white.

McFadyen was suspended from Duke for an email he sent shortly after the team party in which he described how he would kill and skin strippers, according to court documents.

Administrators later reinstated McFadyen, noting that his remarks were "in jest" and a take-off from "American Psycho," a Bret Easton Ellis novel that was made into a movie about a serial killer.

The lawsuit accuses Nifong and police investigators of failing to include the context of the email in the warrant they used to search McFadyen's dorm room. The search warrant later became public record.

"They knew that Ryan's email, taken out of context, would accelerate the firestorm," the lawsuit said.

Nifong won indictments for first-degree rape, sexual assault and kidnapping against David Evans, Collin Finnerty and Reade Seligmann. The case unraveled, however, in the face of Mangum's constantly changing story and a lack of evidence.

State prosecutors eventually took over the case, dropped all charges and declared the players innocent victims of Nifong's "tragic rush to accuse."

Web Editor: Kathy Hanrahan
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