Mcfadyen v. Duke Univ.

Citation272 Ed. Law Rep. 247,786 F.Supp.2d 887
Decision Date31 March 2011
Docket NumberNo. 1:07CV953.,1:07CV953.
CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
PartiesRyan McFADYEN, Matthew Wilson and Breck Archer, Plaintiffs,v.DUKE UNIVERSITY, et al., Defendants.

786 F.Supp.2d 887
272 Ed.
Law Rep. 247

Ryan McFADYEN, Matthew Wilson and Breck Archer, Plaintiffs,
DUKE UNIVERSITY, et al., Defendants.

No. 1:07CV953.

United States District Court, M.D. North Carolina.

March 31, 2011.

[786 F.Supp.2d 898]

Robert C. Ekstrand, Ekstrand & Ekstrand, LLP, Durham, NC, for Plaintiffs.Jamie S. Gorelick, Jennifer M. O'Connor, Paul R.Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, DC, William F. Lee, Wilmer Cutler Pickering Hale and Dorr, LLP, Boston, MA, Dan Johnson McLamb, Shirley Maring Pruitt, Thomas Carlton Younger, III, Yates, McLamb & Weyher, LLP, Patricia P. Kerner, D. Martin Warf, Hannah Gray Styron, Troutman Sanders, LLP, David William Long, Eric P. Stevens, Poyner Spruill, LLP, James Avery Roberts, III,

[786 F.Supp.2d 899]

Paul R. Dickinson, Jr., Lewis & Roberts, PLLC, Raleigh, NC, Reginald B. Gillespie, Jr., Faison & Gillespie, James B. Maxwell, Maxwell Freeman & Bowman, P.A., Henry W. Sappenfield, Joel Miller Craig, Kennon Craver Belo Craig & McKee, PLLC, Durham, NC, Clinton R. Pinyan, Kearns Davis, Robert James King, III, Brooks Pierce McLendon Humphrey & Leonard, James Donald Cowan, Jr., Dixie Thomas Wells, Ellis & Winters, LLP, Greensboro, NC, for Defendants.Linwood Wilson, Bahama, NC, pro se.
JAMES A. BEATY, District Judge.

This case involves 41 claims set out in an exhaustive 428–page Second Amended Complaint [Doc. # 136] by Plaintiffs Ryan McFadyen (“McFadyen”), Matthew Wilson (“M. Wilson”), and Breck Archer (“Archer”) against Defendants Duke University (“Duke”), the Duke University Police Department (“Duke Police”), Duke University Associate Vice President for Campus Safety and Security Aaron Graves (“Graves”), Director and Chief of the Duke Police Department Robert Dean (“Dean”), Duke Police Assistant Police Chief Leila Humphries (“Humphries”), Duke Police Major Phyllis Cooper (“Cooper”), Duke Police Medical Center Affairs Manager William F. Garber, II (“Garber”), Duke Police Major James Schwab (“Schwab”), Duke Police Lieutenant Joseph Fleming (“Fleming”), Duke Police Lieutenant Jeffrey O. Best (“Best”), Duke Police First Sergeant Gary N. Smith (“Smith”), Duke Police First Sergeant Greg Stotsenberg (“Stotsenberg”), Chairman of the Executive Committee of the Duke Board of Trustees Robert K. Steel (“Steel”), Duke President Richard H. Brodhead (“Brodhead”), Duke Provost Peter Lange (“Lange”), Duke Executive Vice President Tallman Trask, III (“Trask”), Duke Senior Vice President for Public Affairs and Government Relations John Burness (“Burness”), Duke Vice President for Student Affairs Larry Moneta (“Moneta”), Duke Chancellor for Health Affairs and President and Chief Executive Officer of Duke University Health Systems, Inc. Victor J. Dzau (“Dzau”), Duke Secretary Allison Haltom (“Haltom”), Duke Vice President for Campus Services Kemel Dawkins (“Dawkins”), Duke Assistant Vice President for Student Affairs and Dean of Students Suzanne Wasiolek (“Wasiolek”), Duke Associate Dean of Students and Director of Judicial Affairs Stephen Bryan (“Bryan”), Duke Auxiliary Services Senior Manager IT and Head of the Duke Card Office Matthew Drummond (“Drummond”), Duke University Health Systems, Inc. (“Duke Health”), Private Diagnostic Clinic, PLLC (“Private Diagnostic”), Duke Health Dr. Julie Manly (“Manly”), Duke Health Nurse Theresa Arico (“Arico”), Duke Health Nurse Tara Levicy (“Levicy”), the City of Durham (“the City”), former District Attorney Michael B. Nifong (“Nifong”) 1, Durham City Manager Patrick Baker (“Baker”), Durham Chief of Police Steven Chalmers (“Chalmers”),

[786 F.Supp.2d 900]

Durham Deputy Chief of Police Ronald Hodge (“Hodge”), Executive Officer to the Durham Chief of Police Lee Russ (“Russ”), Durham Police Commander of Investigative Services Stephen Mihaich (“Mihaich”), Durham Police Uniform Patrol Bureau Commander Beverly Council (“Council”), Durham Police Patrol District Two Commander Jeff Lamb (“Lamb”), Durham Police Department District Two Lieutenant Michael Ripberger (“Ripberger”), Durham Police Department District Two Sergeant Laird Evans (“Evans”), Director of the Durham Emergency Communications Center James T. Soukup (“Soukup”), Durham Police Public Relations Coordinator and Public Information Officer Kammie Michael (“Michael”), Durham Police Department CrimeStoppers Coordinator David W. Addison (“Addison”), Durham Police Department District Two Sergeant Mark D. Gottlieb (“Gottlieb”), Durham Police Department Investigator Benjamin W. Himan (“Himan”), District Attorney's Office Investigator Linwood Wilson (“Wilson”), Durham Police Department District Two Patrol Officer Richard D. Clayton (“Clayton”), DNA Security, Inc. (“DSI”), DSI President Richard Clark (“Clark”), and DSI Lab Director Brian Meehan (“Meehan”).

Defendants have collectively filed multiple, separate Motions to Dismiss, that is, a Motion to Dismiss by Defendant Meehan [Doc. # 174], a Motion to Dismiss by Defendants Soukup, Michael, Addison and Clayton [Doc. # 169], a Motion to Dismiss by Defendant Linwood Wilson [Doc. # 167], a Motion to Dismiss by Defendants Duke, Brodhead, Bryan, Burness, Dawkins, Drummond, Dzau, Graves, Haltom, Lange, Moneta, Steel, Trask, and Wasiolek (collectively, the “Duke University Defendants”) [Doc. # 175], a Motion to Dismiss by Defendants Duke Health, Private Diagnostic, Arico, Levicy, and Manly (collectively, the “Duke SANE Defendants”) [Doc. # 177], a Motion to Dismiss by Duke Police, Best, Cooper, Dean, Fleming, Garber, Humphries, Schwab, Smith, and Stotsenberg (collectively, the “Duke Police Defendants”) [Doc. # 176], a Motion to Dismiss by Defendant Himan [Doc. # 171], a Motion to Dismiss by Defendant Gottlieb [Doc. # 168], a Motion to Dismiss by Defendants Baker, Chalmers, Russ, Mihaich, Council, Lamb, Ripberger, Evans, and Hodge [Doc. # 170], a Motion to Dismiss by Defendants DSI and Clark [Doc. # 173], and a Motion to Dismiss by the City [Doc. # 179]. Defendants previously filed various Motions to Dismiss with respect to Plaintiffs' First Amended Complaint, but those Motions to Dismiss were rendered moot by the filing of Plaintiffs' Second Amended Complaint on February 23, 2010. In their present Motions to Dismiss the parties have incorporated the prior briefing filed in connection with the original Motions to Dismiss and, as appropriate, have added additional briefing with respect to new matters raised in the Second Amended Complaint. The new Motions to Dismiss with respect to the Second Amended Complaint were referred to the Court for determination on May 4, 2010, and are addressed in this Memorandum Opinion.2

[786 F.Supp.2d 901]


This case arises out of the investigation of members of the Duke University men's lacrosse team on charges of rape, sexual assault, and kidnapping. The Plaintiffs here are three members of the lacrosse team who were subject to a Non–Testimonial Order (“NTO”) but who were not indicted in that investigation (the “Plaintiffs”). The Court here sets out the facts as alleged in the Second Amended Complaint, which the Court is required to accept as true for purposes of the present Motions to Dismiss.3

On the evening of March 13, 2006, members of the lacrosse team hosted a party at a residence at 610 N. Buchanan Avenue. The residence was owned by Duke and rented by members of the lacrosse team, and was located in a neighborhood adjacent to Duke's campus. Two dancers were hired to perform at the party, and the first dancer, Kim Pittman, arrived at 11:15 p.m. The second dancer, Crystal Mangum, arrived at 11:40 p.m. but was “dazed and stumbling.” (Second Am. Compl. ¶ 197). Plaintiffs allege that witnesses saw the dancers plan their routine outside of the residence and then enter the residence at midnight, which was corroborated by pictures taken at that time. When the performance began, Mangum was “incapable of dancing in any fashion,” fell as she took off her shoes, and “was speaking unintelligibly.” (Second Am. Compl. ¶ 201). The dance ended within four minutes and the dancers left the living room without objection from the guests. Mangum left her shoe on the living room floor. By 12:30, Mangum was observed outside the residence “apparently locked out” and “saying she lost her shoe.” (Second Am. Compl. ¶ 205–206). Plaintiffs allege that pictures showed Mangum smiling, but stumbling around the backyard, and a picture taken at 12:41 showed Mangum being assisted into Pittman's car before Pittman drove away.4

Plaintiffs allege that as she drove off, “Pittman made a derogatory racial remark and received one in turn.” (Second Am. Compl. ¶ 215). Pittman “made a show of calling the police” and reporting the incident and directing police to 610 N. Buchanan, although Plaintiffs contend that “[i]t was plainly obvious from the 911 call itself that the call was a poorly veiled ruse.” (Second Am. Compl. ¶ 216, 218). Durham Police Sergeant Shelton responded to the call but found no one there. Plaintiffs contend that the remaining guests had left based on prior incidents in which students were charged by police regardless of whether any actual offense had been committed, as discussed in greater detail below.

Pittman subsequently drove to a 24–hour grocery store to find a security guard to help get Mangum out of her car. The security guard, Angel Altmon, was unable

[786 F.Supp.2d 902]

to coax Mangum out of the car and called 911 for assistance. 5 Plaintiffs allege that Sgt. Shelton and Officer Barfield arrived, and Pittman admitted to them that she had placed the “prank 911 call” reporting a racial epithet at 610 N. Buchanan. (Second Am. Compl. ¶ 230). Sgt. Shelton approached Mangum but she was in the car feigning unconsciousness. Plaintiffs allege that “Sgt. Shelton suspected a ruse, so he broke open an ammonia capsule under Mangum's nose, and Mangum began mouth-breathing, confirming his suspicions.” (Second Am. Compl. ¶ 232). Sgt. Shelton tried to pull Mangum out of the car...

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