McCain v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KIMBERLY MCCAIN,

Plaintiff,

v. Civil Action No. 13-1589 (GK)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Kimberly McCain ("Plaintiff" or "McCain") brings

this action against the District of Columbia ("the District")

and Metropolitan Police Department ("MPD") Officers Kelvin King

("Officer King") and Richard Moats ("Officer Moats")

(collectively, "Defendants") for negligence, gross negligence,

negligent supervision, intentional infliction of emotional

distress, and violations of her constitutional rights pursuant

to 42 U.S.C. § 1983.

This matter is before the Court on Defendants' Motion to

Dismiss [Dkt. No. 4]. Upon consideration of the Motion,

Plaintiff's Opposition [Dkt. No. 7], Defendants' Reply [Dkt. No.

8] ' Plaintiff's Supplemental Opposition [Dkt. No. 10] '

Defendants' Response to the Supplemental Opposition [ Dkt. No.

11], Defendants' Notice to the Court dated August 14, 2014 [Dkt.

No. 14], and the entire record herein, and for the reasons
stated below, Defendants' Motion shall be granted in part and

denied in part.

I. BACKGROUND

A. Factual Background1

On July 12, 2009, Plaintiff was arrested in the District of

Columbia for drunk driving. Amended Complaint ("Am. Compl. ")

~~ 8-9. 2 After failing a series of field sobriety tests, she was

taken to "a police substation" where she was twice administered

a breath alcohol test using a machine known as an Intoxilyzer

5000EN ("Intoxilyzer"). Id. ~~ 8-10. The results of

Plaintiff's Intoxilyzer tests were 0.34 and 0.37 grams per 210

liters of breath, respectively, indicating that her breath

1
The facts are taken from the Amended Complaint [Dkt. No. 1-2],
documents incorporated by reference in the Amended Complaint,
and facts of which the Court may take judicial notice. See Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)
("In determining whether a complaint states a claim, the court
may consider the facts alleged in the complaint, documents
attached thereto or incorporated therein, and matters of which
it may take judicial notice.") ( citation omitted) . · In
particular, the Court takes judicial notice of the docket in
Plaintiff's criminal case, District of Columbia v. McCain, No.
2009 CTF 016013 (D.C. Super. Ct. July 23, 2009) ("McCain Crim.
Dkt."). See Rogers v. District of Columbia, 880 F. Supp. 2d
163, 166 (D. D.C. 2012) (" [D]ocket sheets are public records of
which the Court can take judicial notice[.]") (citing Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). A copy of the
McCain criminal docket is attached as Exhibit 1 to Defendants'
August 14, 2014, Notice [Dkt. No. 14].
2
The Amended Complaint erroneously states that Plaintiff was
arrested on December 7, 2008, but the parties agree that she was
actually arrested on July 12, 2009. See Pl.'s Opp'n at 1.

-2-
alcohol level was more than four times the legal limit. Id.