bvelliquette@heraldsun.com; 419-6632
DURHAM – A lawsuit filed against Tracey Cline by a man she once prosecuted should be dismissed because the lawsuit is too long, repetitive and includes a large number of implicit assumptions and false premises, according to a motion to strike filed Wednesday in Durham County Civil Superior Court.
The lawsuit filed in September 2011 by Frankie Delano Washington and Frankie Delano Washington, Jr., complained that Cline, Durham police investigators and supervisors, the Durham city manager, the City of Durham and the State of North Carolina, framed him for a 2002 home invasion. Washington was convicted of the violent home invasion in 2007, but the N.C. Court of Appeals overturned the conviction, saying authorities had violated his right to a speedy trial and faulting prosecutors for failure to conduct timely DNA testing on evidence they collected.
When the DNA was tested, it did not match Washington’s DNA.
The City of Durham already filed an answer to its part of the lawsuit, and Wednesday was the deadline for Cline to file an answer for her part. The answer, however, was not an answer, but rather a motion to strike and a motion to dismiss the lawsuit on behalf of Cline and the State of North Carolina.
The short, four-page document was filed by Grady L. Balentine Jr., a special deputy attorney general for North Carolina Attorney General Roy Cooper.
The motion to strike portion asks the court to strike the complaint or portions of the complaint, because it violates the requirements of a rule that provides that a complaint shall contain a “short and plain statement of the claim,” to give the court notice of transactions or occurrences intended to prove that the plaintiff is entitled to relief.
Each paragraph in a complaint should be made in a numbered paragraph, and each paragraph should contain a single set of circumstances, the motion states.
“The plaintiffs’ complaint is 97 pages, single spaced,” the motion states. “Its allegations are repetitive and include a large number of implicit assumptions and false premises. A large number of the 472 paragraphs allege more than a single set of circumstances.”
Durham attorney Robert Ekstrand filed the lawsuit for the Washingtons.
Cline and the State also asked the court to dismiss the lawsuit for various reasons, including that Cline and the State enjoy sovereign immunity from the plaintiffs’ claims of intentional misconduct; the Court lacks jurisdiction over the matter; and Cline enjoys prosecutorial immunity against the claims involving her prosecutorial functions and she also enjoys public official immunity.
Even though the Court of Appeals overturned Washington’s conviction, his conviction in Superior Court established probable cause for his arrest as a matter of law, consequently, all the plaintiffs’ purported claims of absence of probable cause are barred and subject to dismissal, the motion states.
The lawsuit should be struck or dismissed because it violated the North Carolina Rules for Civil Procedure, “for failure to comply with the general rules of pleading, insufficiency of service of process, lack of jurisdiction over the person of the defendants, lack of jurisdiction over the subject matter, and failure to state a claim upon which relieve can be granted.”
