Duke Lacrosse Lawsuits Move Forward to Discovery

Having undertaken this comprehensive review of the 41 claims asserted in this case against the various 50 Defendants, the Court concludes that the Motions to Dismiss will be granted in part and denied in part as set out herein.

In summary, Counts 1, 2, and 5 will go forward under 42 U.S.C. § 1983 for alleged constitutional violations.

The claims asserted in Counts 1 and 2 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendment for unlawful searches and seizures without probable cause based on the Non-Testimonial Order and Search Warrant that were allegedly obtained through the intentional or reckless use of false or misleading evidence or material omissions designed to mislead the magistrate judge.

The claims asserted in Count 5 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourteenth Amendment based on alleged false and stigmatizing statements by the government in connection with the alleged Fourth Amendment violations in Counts 1 and 2.

With respect to these claims, to the extent that Defendants contend that there was no constitutional violation because probable cause would still exist to support the searches and seizure, even if the allegedly false and misleading statements are removed and the alleged material omissions are included, the Court has concluded that this contention cannot be resolved on a motion to dismiss in light of the Plaintiffs’ allegations here. Such an inquiry is fact-intensive in the present case given the number of and nature of the alleged misrepresentations and omissions.

Therefore, the Court concludes that this issue is more appropriately considered on an evidentiary record after discovery.

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

(pg 217)

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

The remaining claims asserted under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 and § 1986,
including all of the claims in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, and 17 do not state plausible, legally viable claims, and will be dismissed.

With respect to the state law claims, the Court concludes that with respect to Count 18,
Plaintiffs have stated a state law claim for obstruction of justice against Defendants Nifong,
Gottlieb, Himan, Wilson, Clark, Lamb, Meehan, Levicy, Steel, Brodhead, Dzau, and Burness,
with potential respondeat superior liability against the City, DSI, Duke, and Duke Health.

As an alternative to respondeat superior under state law, Plaintiffs have also stated a claim for negligent supervision against Duke Health and Duke in Count 32 and against DSI in Count 35. In addition, Plaintiffs have stated a claim in Count 21 against Duke for breach of contract, but

(pg 218)

limited only to the allegation that Duke imposed disciplinary measures against Plaintiffs,
specifically suspension, without providing them the process that was promised. Plaintiffs have also stated a claim in Count 24 for fraud against Defendants Smith, Graves, Dean, Drummond, and Duke, based on allegations that Drummond sent letters to Plaintiffs informing them that Duke had received a subpoena relating to Plaintiffs’ Duke Card information, and fraudulently misrepresented that Plaintiffs’ Duke Card information had not previously been provided to Durham Police.

Finally, with respect to the state law claims against the City in Counts 18, 25, and 26, and
the state constitutional claim asserted in Count 41, the Court concludes that these claims, and the governmental immunity defense raised in the City’s Motion for Summary Judgment [Doc. #86], are intertwined claims, some of which are pled in the alternative, that must be resolved at summary judgment after an opportunity for discovery.95

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

Based on this determination, the Court notes that claims are going forward as to
Defendant Nifong in Counts 1, 2, 5, and 18; against Defendant Gottlieb in Counts 1, 2, 5, and 18; against Defendant Himan in Counts 1, 2, and 18; against Defendant Levicy in Counts 1, 2, and 18; against Defendant Smith in Counts 2 and 24; against Defendant Addison in Count 5;

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against Defendant Wilson in Counts 5 and 18; against the City in Counts 1, 2, and 5 (based on the allegations in Counts 12 and 14), as well as in Counts 18, 25, 26, and 41; against Defendants Hodge, Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 1, 2, 5, and 13, plus Count 18 as to Defendant Lamb; against Defendants Clark, Meehan, and DSI in Count 18, plus Count 35 against Defendant DSI; against Defendants Steel, Brodhead, Dzau and Burness in Count 18; against Defendants Graves, Dean, and Drummond in Count 24; against Defendant Duke Health in Counts 18 and 32; and against Defendant Duke in Counts 18, 21,96 24, and 32.

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

Having undertaken this comprehensive review of the 41 claims asserted in this case, the
Court is compelled to note that while § 1983 cases are often complex and involve multiple
Defendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein. The Western District of Virginia noted similar concerns recently in a § 1983 case pending there, stating that “There is no question but that [the] Complaint is extravagant not only in its length (29 pages and 114 numbered paragraphs), but also in its tone, containing numerous underlinings and italics for emphasis and provocative bold headings, such as, “Part of a Larger Conspiracy?” and, “Things

(pg 220)

Go From Bad To Worse”. Surely Iqbal does not require such spin and one wonders what
counsel’s aim is in drafting such a pleading. It certainly does not help to persuade the court.”
Jackson v. Brickey, No. 1:10CV00060, 2011 WL 652735, at *12 n.4 (W.D. Va. 2011). These
concerns are substantially greater in the present case, where Plaintiffs have seen fit to file not
29 pages and 114 numbered paragraphs, but 428 pages and 1,388 numbered paragraphs, with
dramatic rhetoric and sweeping accusations against a “Consortium” of 50 Defendants, most of which is not relevant to the actual legally-recognized claims that may be available. Indeed,
Plaintiffs’ potentially valid claims risk being lost in the sheer volume of the Second Amended
Complaint,97 and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legal
pleadings. Plaintiffs approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.

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

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Complaint that are going forward, particularly as to Counts 1, 2, and 5, set out allegations of
significant abuses of government power. Indeed, the intentional or reckless use of false or
misleading evidence before a magistrate judge to obtain a warrant and effect a search and seizure is exactly the type of “unreasonable” search and seizure the Fourth Amendment is designed to protect against. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.’”
Washington v. Wilmore, 407 F.3d 274, 285 (Shedd, J., concurring) (quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004)). In addition, “the Supreme Court has long held that a police officer violates the Fourth Amendment if, in order to obtain a warrant, he deliberately or ‘with reckless disregard for the truth’ makes material false statements or omits material facts. . . . No reasonable police officer . . . could believe that the Fourth Amendment permitted such conduct.” Miller v. Prince George’s County, 475 F.3d 621, 631-32 (4th Cir. 2007) (internal citations omitted). Thus, there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen, in this case by allegedly making false and misleading representations and creating false and misleading evidence in order to obtain an NTO against all of the lacrosse team members and obtain a search warrant. This case will therefore proceed to discovery on the claims as set out above, and it will ultimately be Plaintiffs’ burden to present proof in support of these claims.

IT IS THEREFORE ORDERED that the Motions to Dismiss [Doc. #167, 168, 169,
170, 171, 173, 174, 175, 176, 177, 179] are GRANTED IN PART and DENIED IN PART as

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set out herein. IT IS FURTHER ORDERED that the City of Durham’s Motion for Summary Judgment [Doc. #86] is DENIED at this time, without prejudice to the City raising the issues asserted therein as part of a comprehensive Motion for Summary Judgment at the close of discovery.

A separate Order will be entered contemporaneously herewith.
This, the 31st day of March, 2011.

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