Carrington v Duke Memorandum Decision on Summary Judgment

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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINAEDWARD CARRINGTON, et al., ))Plaintiffs, ))v. ) 1:08CV119)DUKE UNIVERSITY, et al., ))Defendants. )MEMORANDUM OPINIONThis case involves 32 claims set out in a 225-page Amended Complaint [Doc. #145] by Plaintiffs Edward Carrington, Casey J. Carroll, Michael P. Catalino, Gale Catalino, ThomasClute, Kevin Coleman, Joshua R. Coveleski, Edward J. Crotty, Edward S. Douglas, Kyle Dowd,Patricia Dowd, Daniel Flannery, Richard Gibbs Fogarty, Zachary Greer, Irene Greer, Erik S.Henkelman, Steven Henkelman, John E. Jennison, Ben Koesterer, Mark Koesterer, JoyceKoesterer, Fred Krom, Peter J. Lamade, Adam Langley, Christopher Loftus, Daniel Loftus,Barbara Loftus, Anthony McDevitt, Glenn Nick, Nicholas O’Hara, Lynnda O’Hara, DanielOppedisano, Sam Payton, John Bradley Ross, Kenneth Sauer, III, Steve Schoeffel, RobertSchroeder, Devon Sherwood, Daniel Theodoridis, Bret Thompson, Christopher Tkac, Tracy Tkac, John Walsh, Jr., Michael Ward, Robert Wellington, William Wolcott, and Michael Young (collectively, “Plaintiffs”), all of whom are former members of the Duke University men’slacrosse team or their parents, against Defendants Duke University (“Duke”), Duke University Health System, Inc. (“Duke Health”), Duke President Richard Brodhead (“Brodhead”), DukeProvost Peter Lange (“Lange”), Duke Vice President for Student Affairs Larry Moneta(“Moneta”), Duke Senior Vice President for Public Affairs and Government Relations John

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Plaintiffs’ Amended Complaint also asserted claims against Attorney J. Wesley Covington (“Covington”). Mr. Covington’s Estate was later substituted as a party in this case,and by Order dated October 15, 2010, Plaintiffs voluntarily dismissed their claims againstMarsha Covington as executrix of the Estate of John Wesley Covington. Therefore, no claimsremain against Covington or his Estate.

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Burness (“Burness”), Duke Executive Vice President Tallman Trask (“Trask”), Duke AssistantVice President for Student Affairs and Dean of Students Suzanne Wasiolek (“Wasiolek”), Headof the Duke Card Office Matthew Drummond (“Drummond”), Duke University Associate VicePresident for Campus Safety and Security Aaron Graves (“Graves”), Director and Chief of theDuke Police Department Robert Dean (“Dean”), Duke Health Nurse Tara Levicy (“Levicy”),Duke Health Nurse Theresa Arico (“Arico”), Duke Deputy General Counsel Kate Hendricks(“Hendricks”), Duke Chancellor for Health Affairs and President and Chief Executive Officerof Duke University Health System, Inc. Victor Dzau (“Dzau”), the City of Durham (“the City”),District Attorney’s Office Investigator Linwood Wilson (“Wilson”), Durham Police DepartmentDetective Mark Gottlieb (“Gottlieb”), Durham Police Department Investigator BenjaminHiman (“Himan”), Durham City Manager Patrick Baker (“Baker”), Durham Chief of PoliceSteven Chalmers (“Chalmers”), Deputy Chief of Police Ronald Hodge (“Hodge”), ExecutiveOfficer to the Chief of Police Lee Russ (“Russ”), Durham Police Commander of InvestigativeServices Stephen Mihaich (“Mihaich”), Durham Police Uniform Patrol Bureau CommanderBeverly Council (“Council”), Durham Police District Two Uniform Patrol Commander Jeff Lamb (“Lamb”), Durham Police Department Lieutenant Michael Ripberger (“Ripberger”), andDurham Police Department Spokesman David Addison (“Addison”).

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Defendants have collectively filed multiple Motions to Dismiss, specifically, a Motion to

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The Court notes that some of the issues raised in the Motions to Dismiss in thepresent case are similar to certain of the issues raised in two other cases in this District that havebeen identified by the parties and the Clerk’s Office as “related” to the present case: McFadyen,et al. v. Duke University, et al. (1:07CV953) and Evans, et al. v. City of Durham, et al.(1:07CV739). Those cases also involve multiple Motions to Dismiss for which briefing has now been completed and which have been referred to the Court for consideration. Orders andOpinions are being entered in those cases contemporaneously with the present Order andOpinion in this case. These cases have not been formally consolidated, and are still proceeding as separate cases, although consolidation of discovery may be appropriate in light of theoverlapping issues raised. In addition, given the overlapping legal issues, much of the analysispresented in the three Opinions in these cases is the same. The Court restates the analysis ineach case, however, so that each Opinion can stand alone.

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Dismiss by Defendant Wilson [Doc. #146], a Motion to Dismiss by Defendant Gottlieb[Doc. #147], a Motion to Dismiss by Defendant Addison [Doc. #148, 149], a Motion toDismiss by Defendants Baker, Chalmers, Council, Hodge, Lamb, Mihaich, Ripberger, and Russ[Doc. #150], a Motion to Dismiss by Defendant Himan [Doc. #151], a Motion to Dismiss by Defendants Duke, Brodhead, Burness, Dean, Drummond, Dzau, Graves, Hendricks, Lange,Moneta, Trask, and Wasiolek [Doc. #152], a Motion to Dismiss by Defendants Duke Health,Arico, and Levicy [Doc. #153], and a Motion to Dismiss by the City [Doc. #154]. Defendantspreviously filed various Motions to Dismiss with respect to Plaintiffs’ original Complaint, butthose Motions to Dismiss were rendered moot by the filing of Plaintiffs’ Amended Complainton February 22, 2010. In their present Motions to Dismiss the parties have incorporated theprior briefing filed in connection with the original Motions to Dismiss and, as appropriate, haveadded additional briefing with respect to new matters raised in the Amended Complaint. Thenew Motions to Dismiss with respect to the Amended Complaint were referred to the Court fordetermination on May 4, 2010, and are addressed in this Memorandum Opinion.

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