| Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !! | |
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| Tweet Topic Started: Mar 31 2011, 04:21 PM (12,251 Views) | |
| Kerri P. | Mar 31 2011, 06:05 PM Post #46 |
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Finally!!!
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| jmoo | Mar 31 2011, 06:06 PM Post #47 |
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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 | Mar 31 2011, 06:10 PM Post #48 |
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Thanks Abb!! |
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| sceptical | Mar 31 2011, 06:11 PM Post #49 |
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Jmoo, is the above from the McFadyen decision or the Carrington decision? Has the Evans decision been released? |
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| jmoo | Mar 31 2011, 06:11 PM Post #50 |
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Discovery!! Best news of the year! |
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| jmoo | Mar 31 2011, 06:14 PM Post #51 |
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McFadyen |
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| Quasimodo | Mar 31 2011, 06:19 PM Post #52 |
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CAUTION: Not sure I have this quite right yet--doing this quickly-- but a LOT appears to have been dismissed-- '
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 | Mar 31 2011, 06:21 PM Post #53 |
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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?
Edited by Quasimodo, Mar 31 2011, 06:23 PM.
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| sceptical | Mar 31 2011, 06:24 PM Post #54 |
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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 | Mar 31 2011, 06:25 PM Post #55 |
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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 | Mar 31 2011, 06:29 PM Post #56 |
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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 | Mar 31 2011, 06:29 PM Post #57 |
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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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| abb | Mar 31 2011, 06:31 PM Post #58 |
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Once they get under oath, the bastards will rat the others out. They always do.
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| Joan Foster | Mar 31 2011, 06:32 PM Post #59 |
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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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| abb | Mar 31 2011, 06:32 PM Post #60 |
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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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3:30 AM Jul 11