UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDRIA McGAUGHEY,
Plaintiff,
v. Civil Case No. 07-1498 (RJL)
DISTRICT OF COLUMBIA, et af.,
Defendants.
(August
Plaintiff Alexandria McGaughey ("plaintiff' or "McGaughey") has filed this
diversity action against eight defendants, including the District of Columbia ("District"),
for the events stemming from her attempts to receive medical treatment at various
hospitals in the District of Columbia following her alleged drugging and sexual assault in
December 2006.
McGaughey has filed three negligence claims against the District: Count VII,
which alleges negligent hiring, training, and supervision of Metropolitan Police
Department ("MPD") officers; Count VIII, which alleges negligent interference in
McGaughey's medical treatment; and Count IX, which alleges negligent failure to
investigate McGaughey's alleged sexual assault. See Amend. Compl. ,-r,-r 107-120. On
August 5, 2009, the District moved for summary judgment on these claims. Def.'s Mot.
Summ. J. ("Def. Mot.") [#189]. On December 31,2009, the instant motion, among
others, was referred to Magistrate Judge Deborah A. Robinson for report and
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recommendation pursuant to Local Civil Rule 72.3. See Order [#239]. On February 24,
2010, Magistrate Judge Robinson issued her Report & Recommendation, recommending
that the District's motion for summary judgment be denied. See Report &
Recommendation [#245]. On March 10,2010, the District objected to Magistrate Judge
Robinson's recommendation. See Def.'s Objection ("Def. Obj.") [#253].
Local Civil Rule 72.3( c) provides that the Court "shall make a de novo
determination of those portions of a magistrate judge's findings and recommendations to
which objection is made." LCvR 72.3(c). The Court "may accept, reject, or modify, in
whole or in part, the findings and recommendations of the magistrate judge." Id.
Though not precise in its objections, the District appears to object to all aspects of
Magistrate Judge Robinson's report.} Accordingly, this Court reviews the entire Motion
for Summary Judgment de novo. After careful consideration of the pleadings, the
relevant law, and the entire record herein, the Court GRANTS the District's Motion for
Summary Judgment for the following reasons.
} Specifically, the District argues that Magistrate Judge Robinson's "most fundamental
error" was her finding that punitive damages were to be determined by the factfinder.
Def. Obj. 7. Second, the District contends that Magistrate Judge Robinson erred in
resting her recommendation of denial on the finding whether McGaughey had reported
sexual assault to the MPD was disputed. Id. 9. The District also objects to her failure to
address whether McGaughey proffered facts supporting the existence of a "special
relationship" between herself and the police, contending that she also erroneously applied
the law on this issue, id. 10-11, and to her failure to address the District's standing and
discretionary function arguments, id. 15. It also objects to her finding that causation is a
question for the jury. Id. 14. Finally, the District claims that her failure to address
plaintiff s damages claims-or what it contends is a lack thereof-is further basis for the
Court to reject Magistrate Judge Robinson's report and recommendation. Id. 17-18.
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BACKGROUND
Because the facts of this case are complicated and involve many defendants, the
following is a summary of those facts that pertain to the District as a defendant. All
inferences are drawn, as they must be, in favor of the plaintiff.
On December 9,2006, McGaughey visited Howard University Hospital ("HUH")
to be seen for her alleged sexual assault the night before and to have a rape kit performed.
Pl.'s Ex. 46, McGaughey's HUH Medical Records. This was her second visit to HUH
since the alleged assault. Id. At some time during her visit, an MPD officer responded in
person to HUH. Pl.'s Ex. 22, Alexandria McGaughey Dep. 141:2-9, Apr. 1,2008 ("A.
McGaughey Dep."). The officer then called a Sexual Assault Unit ("SAU") detective,
who spoke with McGaughey over the phone. Pl.'s Ex. 37, Vincent Spriggs Dep. 224:13-
225:13, Oct. 23, 2008 ("Spriggs Dep."); A. McGaughey Dep. 330:2-13. The detective
informed either (or both) McGaughey and/or the officer at the scene that no rape kit
would be brought to the hospital. Spriggs Dep. 225:16-226:7; A. McGaughey Dep.
123:22-124:8. An MPD Special Order required detectives responding to reports of
sexual assault to respond in person at the scene. Pl.'s Ex. 67, Sexual Assault Nurse
Examiners Program (SANE), Special Order, Metropolitan Police, Apr. 2, 2001; see also
Pl.'s Opp'n Ex. 8, MPD, Sexual Assault Unit, Standard Operating Procedures, Jan. 14,
2003; Pl.'s Opp'n Ex. 5, Ginette Leveque Dep. 39:5-13, Apr. 14,2008. Plaintiffs sister,
Raegen, who was present at HUH, then called MPD again, and was instructed to call 911,
which she did. Pl.'s Ex. 23, Raegan McGaughey Dep. 135:20-136:20, Mar. 31, 2008.
Two different officers then responded to HUH in person, where they proceeded to contact
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the SAU, reaching a different SAU detective. Pl.'s Ex. 42, Elgin Wheeler Dep. 115:1-13,
Oct. 3,2008 ("Wheeler Dep."). That SAU detective then contacted his squad supervisor,
and informed him that the officers at the scene reported that McGaughey was unsure if
she was assaulted, that she was giving "hypothetical answers to the uniform officer to get
a sexual assault kit done," and that a prior SAU detective had interviewed her and
determined that no crime was reported. Wheeler Dep. 116:8-117:5; Pl.'s Ex. 31, Kevin
Rice Dep. 181:14-182:7, Oct. 14,2008 ("Rice Dep."). Based on this information, the
squad supervisor determined that the SAU would not open a case, and that message was
relayed, through the detective and officers, to plaintiff. Rice Dep. 184:22-185:14; A.
McGaughey Dep. 343:5-8. The officers then took a report of the encounter. Pl.'s Opp'n
Ex. 4, Dec. 9, 2006 Police Report.
After failing to obtain a rape kit at HUH, plaintiff then sought treatment at George
Washington University Hospital ("GWUH"). A. McGaughey Dep. 151:10-12. There,
McGaughey spoke to yet another MPD detective over the phone, who told her that she
had contacted her supervisor but McGaughey's case had been closed, and that therefore
McGaughey could not receive a rape kit. Id. 344: 1-345:6.
DISCUSSION
Summary judgment is proper where the evidence shows "that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(citing same). The moving party bears the initial responsibility of demonstrating the
absence of a genuine dispute of material fact. Celotex, 477 U. S. at 323. A party
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opposing a motion for summary judgment "may not rely merely on allegations or denials
in its own pleading; rather, its response must-by affidavits or as otherwise provided in
this rule-set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e).
Though the Court must draw all justifiable inferences in favor of the non-moving party in
deciding whether there is a disputed issue of material fact, "[t]he mere existence ofa
scintilla of evidence in support of the [non-movant]'s position will be insufficient; there
must be evidence on which the jury could reasonably find for the [non-movant]."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted."
Id. at 249-50 (citations omitted).
The District argues that it is protected from suit on McGaughey's negligence
claims by the public duty doctrine. Plaintiff contends that because she has not alleged
failure to protect, but instead has alleged affirmative harm by the police, the public duty
doctrine is inapposite, and furthermore, that even if the public duty doctrine does apply,
she has established a "special relationship" with the police sufficient to be owed a special
duty from them. I disagree.
Under the public duty doctrine, the District "owe[ s] no duty to provide public
services to particular citizens as individuals. Instead, ... the District's duty is to provide
public services to the public at large." Hines v. District o/Columbia, 580 A.2d 133, 136
(D.C. 1990) (citations omitted). Because an officer's duty is to the public, his subsequent
"failure to perform it, or an inadequate or erroneous performance, must be a public and
not an individual injury, and must be redressed, if at all, in some form of public
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prosecution." Morgan v. District a/Columbia, 468 A.2d 1306, 1310-11 (D.C. 1983) (en
banc) (quotations omitted). The public duty doctrine does not extend to mere "ordinary"
negligence-for example, mishandling of a police dog, or reckless driving of a police
car-for which any person would be answerable. Warren/Nichol v. District a/Columbia,
444 A.2d 1, 7-8 (D.C. 1981) (en banc). Instead, it covers instances where the plaintiff
contends that a defendant police officer "failed to do what reasonably prudent police
employees would have done in similar circumstances. Id. at 8. The doctrine thus
protects government officials against a "novel sort of professional malpractice" by
shielding their discretionary decisions and actions taken in an official capacity from suit.
Id.
There are, however, limited instances where the public duty doctrine does not
protect the District from suit. First, where the government is affirmatively responsible
for injury through ordinary negligence resulting from the use of its police powers, the
public duty doctrine will not apply. Lisner v. Smith, 254 F. Supp. 2d 89, 102 (D.D.C.
2003) (finding public duty doctrine inapplicable where claim was that police negligently
issued a press release and negligently arrested plaintiff); see also District a/Columbia v.
Evans, 644 A.2d 1008, 1017 n.8 (D.C. 1994) (finding public duty doctrine inapplicable
where plaintiff alleged that police negligently shot and killed her epileptic son).
Second, the public duty doctrine does not protect the District from suit if a special
relationship between the government and the individual creates a specific legal duty to
that individual. Powell v. District a/Columbia, 602 A.2d 1123, 1128 (D.C. 1992). A
special relationship may be established by a "statute prescribing 'mandatory acts clearly
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for the protection of a particular class of persons rather than the public as a whole. '" Id.
at 1129 (quoting Morgan, 468 A.2d at l314); see Turner v. District o/Columbia, 532
A.2d 662 (D.C. 1987). However, because "[a]gency protocols and procedures, like
agency manuals, do not have the force or effect of a statute or an administrative
regulation," they are insufficient to give rise to a special relationship. Wanzer v. District
o/Columbia, 580 A.2d 127, 133 (D.C. 1990). Alternatively, a plaintiff can demonstrate a
special relationship by showing: (1) direct or continuing contact between the plaintiff and
the governmental agency; and (2) justifiable reliance by the plaintiff. Powell, 602 A.2d
at 1130 (citingPlattv. Districto/Columbia, 467 A.2d 149,151 (D.C. 1983)). For
example, "[a] special relationship undoubtedly exists where an individual assists law
enforcement officials in the performance of their duties" or where police otherwise
"make' active use' of a private citizen" in executing their official duties. Morgan, 468
A.2d at l312, l313. By contrast, however, "a special relationship does not come into
being simply because an individual requests assistance from the police." Id. at l3l3
(citations omitted). "Even a series of contacts over a period of time between a public
agency and an injured or endangered person is not enough to establish a special
relationship, absent some showing that the agency assumed a greater duty to that person
than the duty owed to the public at large." Wanzer, 580 A.2d at l32.
McGaughey argues in the alternative that both instances apply to her case. First,
she argues that her claims against the MPD (and therefore, against the District) do not
allege a failure to protect her from criminal acts or harm caused by a third party, and
therefore, that the public duty doctrine does not apply. Pl.'s Opp'n 25-26. Instead,
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McGaughey alleges that the MPD affinnatively hanned her by "improperly insert[ing]
themselves into [p ]laintiff' s treatment and the collection of evidence at the hospital,
thereby 'worsening' her injury." Id. 28.
However, McGaughey misstates the requirements for application of the public
duty doctrine. Though a duty to protect the public from criminal conduct is one duty of
the MPD, it is not their only duty. For example, providing emergency rescue services is
one public duty. See Miller v. District o/Columbia, 841 A.2d 1244 (D.C. 2004)
(applying public duty doctrine to negligent rescue from fire); Allison Gas Turbine v
District o/Columbia, 642 A.2d 841 (D.C. 1994) (applying public duty doctrine to
negligent underwater rescue). Responding to reports of alleged crime and making
judgment calls about how to allocate investigate resources are two others. See, e.g.,
Morgan, 468 A.2d at 1311. McGaughey's interactions with the police occurred in the
police officers' regular perfonnance of their official duties; that is, responding to reports
of alleged crime and deciding whether to open an investigation. 2 Though they may have
negligently responded to her report of sexual assault, and negligently determined that her
case was not a sexual assault case, thereby preventing her from receiving a rape kit, that
2 Magistrate Judge Robinson recommended denial of the District's summary judgment
motion because she found a genuine dispute of material fact: namely, whether "any
officer of the Metropolitan Police Department receive[ d] a report that the Plaintiff had
been sexually assaulted[]." Report & Recommendation 7. However, this Court finds
that, as argued by the District, this fact was not in dispute, as the District has conceded
for the purposes of this motion that the MPD did in fact receive a report that the plaintiff
had been sexually assaulted. See Def. Obj. 9 ("In seeking dismissal by summary
judgment, the District made no material argument to refute [p]laintiff's claim that MPD
responded to Howard University Hospital, met with her, and received her sex assault
report."); Def.'s Stmt of Facts ,-r 13 ("MPD arrived at Howard University Hospital during
plaintiff's second visit, and spoke with her about the sex assault allegations.").
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negligence arose in the performance of a police duty. The District's liability is therefore
limited by the public duty doctrine.
McGaughey attempts to distinguish her claim from those barred by the public duty
doctrine by stating that the police affirmatively inserted themselves into her medical
treatment. She claims that "MPD's egregious mishandling of [p ]laintiffs case also
contributed to the delay of her care and treatment by the hospitals (during which time she
suffered extreme pain and distress), and to [p]laintiffs severe and longstanding emotional
distress from being treated so horribly by MPD." PI.'s Opp'n 39. However, though the
officers may have acted in violation ofMPD policy (see, e.g., PI.'s Ex. 67, Sexual
Assault Nurse Examiners Program (SANE), Special Order of the Metropolitan Police,
Apr. 2, 2001), they did nothing to affirmatively prevent HUH or GWUH from
administering a rape kit. Indeed, plaintiffs continuing position in this case has been that
the hospitals she attended-both HUH and GWUH-could have performed rape kits
regardless of police involvement. PI.'s Stmt of Facts ~158. Thus, unless McGaughey
can demonstrate a special relationship engendering a special duty to her, her negligence
claims against the MPD are barred by the public duty doctrine.
McGaughey argues that her repeated contacts with the police and subsequent
justifiable reliance created a special relationship sufficient to entitle her to a special duty
from the police. PI.'s Opp'n 29-33. But again, McGaughey's argument falls short. As
in Warren, where the plaintiffs repeatedly contacted the police for assistance from a
burglary-in-progress, and, when the police negligently responded, were subsequently
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raped and tortured, plaintiffs repeated contact with the MPD does not give rise to a
special relationship. 444 A.2d at 2-3; see also Morgan, 468 A.2d at 1313 (citing cases).
Unfortunately, this is not the first instance where the MPD is accused of acting
with regrettable indifference to potential crime victims. See, e.g., Warren, 444 A.2d at 1-
3. However, as the D.C. Court of Appeals warned then, "the desire for condemnation
cannot satisfy the need for a special relationship out of which a duty to specific persons
arises." Id. at 4. "Realistically speaking, while public prosecution does little to console
those who suffer from the mistakes of police officials, on balance the community is better
served by a policy that both protects the exercise of law enforcement discretion and
affords a means of review by those who, in supervisory roles, are best able to evaluate the
conduct of their charges." Morgan, 468 A.2d at 1312. Accordingly, because
McGaughey's claim against the MPD arises from alleged negligence in the performance
of their police duties, and because she cannot show a special relationship that gives rise to
a special police duty to her, the public duty doctrine protects the District from suit, and
summary judgment for the District must be GRANTED.
CONCLUSION
For the foregoing reasons, the District's motion for summary judgment is
GRANTED. An appropriate order will accompany this memorandum opinion.
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