Cruz-Roldan v. Nagurka

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CLAUDIA PATRICIA )
CRUZ-ROLDAN, )
)
Plaintiff, )
)
v. ) Case No. 16-cv.:1308 (RJL)
)
GREG NAGURKA , )
)
Defendant. )
)

MEMORAN M OPINION
(February , 2020) [Dkt. #34]

Plaintiff, Claudia Patricia Cruz-Roldan ("plaintiff'' or "Cruz-Roldan"), a childcare

provider at a local day care facility, was the subject of a criminal investigation into child

abuse. The U.S. Attorney's Office for the District of Columbia ("the Government")

charged her in District of Columbia Superior Court with second degree cruelty to children

and simple assault, but ended up voluntarily dismissing the charges. Cruz-Roldan

maintains her innocence and claims the investigation and criminal charges went too far.

She brought this action against Greg Nagurka ("defendant" or "Nagurka"), who was the

lead detective on the case for the D.C. Metropolitan Police Department. She alleged

several tort claims, brought under D.C. law, as well as several constitutional violations,

brought under § 1983. Am. Comp!. [Dkt. #5]. After I considered and dismissed some of

her claims, see [Dkt. #20], the parties moved to discovery on those that remained: common

law negligence (Count I), common law battery (Count II), common law intentional

1
infliction of emotional distress (Count III), common law false arrest (Count IV), and Fourth

Amendment false arrest (Count VI). 1

Nagurka now moves for summary judgment on all Cruz-Roldan's remaining claims.

See Def.'s Mot. for Summ. J. ("Defs Mot.") [Dkt. #34]. On the false arrest claims, he

argues that he had probable cause to arrest Cruz-Roldan for second degree child abuse and

is entitled to qualified immunity. With regard to battery, Nagurka contends that a lawful

arrest made without excessive force cannot give rise to battery. As for the negligence

claim, he insists that plaintiff failed to establish a standard of care that he breached and

that, in any event, he is protected by the public duty doctrine. Finally, Nagurka argues that

plaintiff lacks sufficient facts to support intentional infliction of emotional distress. For

the reasons described herein, Nagurka's motion for summary judgment is GRANTED, in

part. The motion is DENIED, in part, as to negligence. As this ruling disposes of all the

federal questions in this case, and as this case was removed from D.C. Superior Court based

on federal question jurisdiction, I REMAND the case back to the D.C. Superior Court for

further proceedings.

BACKGROUND

Before explaining my reasons for granting summary judgment, a little background

is necessary. Note, however, that I have included here only those facts-undisputed or

1
Plaintiff originally brought a claim for common law slander, which survived
defendant's motion to dismiss. Plaintiff declined to proceed with this claim at summary
judgment, so I dismiss it. See [Dkt. #35] at 50.

2
indisputable-that are material to deciding this motion. 2

J.S.'s Injuries and Start of the Investigation

On May 18, 2015, .T.S., a three-month-old boy, was brought to Kiddie Academy, a

child care facility in the District of Columbia, where he was cared for by Cruz-Roldan,

Mayra Lopez ("Lopez"), and Mary Washington. Pl.'s Opp'n to Def.'s Mot. for Summ. J.

("Pl. 's Opp'n") 3 ~ 1; Def. 's Reply to Pl. 's Opp'n to Def. 's Mot. for Summ. J. ("Def. 's

Reply") 1 ~ 1. When J.S. 'smother picked J.S. up later that day, she noticed marks on his

body that had not been there when she dropped him off. Pl. 's Opp'n 3 il 3; Def. 's Reply
2 ~ 3. J.S.'s mother called Kiddie Academy that night to complain, and Kiddie

Academy's owner, Milena Mattingly ("Mattingly"), reviewed footage of J.S. 's classroom

from earlier that day. Dep. of Milena Mattingly, Pl.'s Opp'n Ex. 1 ("Mattingly Dep.")

[Dkt. #35-1] 14:1, 15:17; Pl.'s Opp'n 4 ~ 5; Def.'s Reply 2 ~ 5.

The following day, J.S. 'smother brought J.S. to Children's National Medical

Center ("Children's"). Def.'s Mot. for Summ. J. Statement of Material Facts ("Def.'s

Mot. SOMF") 3 ~ 2; June 5, 2015 Report oflnvestigation ("June 5 Report"), Def.'s Mot.

Ex. 1 [Dkt. #34-1] at 3.3 Dr. Allison Jackson ("Dr. Jackson"), a physician at Children's,

2
Where facts are disputed, I side with the plaintiff and draw all justifiable inferences in
her favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986), except where
her version of events is "blatantly contradicted by the record, so that no reasonable jury
could believe it," Scott v. Harris, 550 U.S. 372, 380 (2007).
3
Plaintiff contested portions of five of the twenty-six paragraphs of undisputed material
facts proposed by defendant. See Pl.' s Opp' n 17-19. Where, as here, I cite solely to
defendant's motion and the record for a particular fact, I consider that fact undisputed for
purposes of this motion. See F. R. Civ. P. 56(e)(2) ("Ifa party fails ... to properly
address another party's assertion of fact as required by Rule 56(c), the court may ...
consider the fact undisputed for purposes of the motion .... ").

3
examined J.S. Pl. 's Opp'n 4 ~ 7; Def. 's Reply 2 i17. Dr. Jackson took photographs of

what she considered to be abnormalities on his body. Id. Ultimately, a mandated

reporter contacted the Child and Family Services Agency and reported suspected abuse.

Def. 's Mot. SOMF 3 ~ 1; June 5 Report at 3.

Nagurka was assigned to investigate the suspected abuse. Pl.'s Opp'n 3-4 ~ 4;

Def. 's Reply 2 ~ 4. On May 20, 2015, he interviewed the mandated reporter, who told

him about the hospital visit. Def.'s Mot. SOMF 3 ~ 2; June 5 Report at 3. The next day,

Nagurka interviewed J.S. 'smother, who provided a timeline of her discovery of I.S's

bruises: First, J.S. had been under his parents' supervision during the weekend of May

16-17, 2015. Def.'s Mot. SOMF 4 ~ 5; June 5 Report at 4. Second, on the morning of

May 18, 2015, J.S.'s mother changed his clothes at approximate 8;00 a.m. and saw no

bruising. Id. Third, J.S. 'smother dropped him off at Kiddie Academy at approximately

9:00 a.m. and picked him up at approximately 4:45 p.m. Id. Fourth, J.S. 'smother

undressed him at approximately 6:00 p.m. that evening and discovered the bruises. Id.

On May 22, 2015, Dr. Jackson completed a Medico-Legal Form for Abused

Children and provided it to Nagurka. Def. 's Mot. SOMF 4 ~ 6; June 5 Report at 4; Def. 's

Mot. Ex. 2 [Dkt. #34-2] at 2. On the form, she wrote the following:

[J.S.] has at least 12 discrete bruises to his back, left arm and both thighs
which are primarily linear or curvilinear in shape. Such bruises would
require blunt or compressive force from an object(s) with a linear/curvilinear
component. Bruising in any infant this young is concerning for inflicted
trauma. Developmentally, there is no reasonable activity that' would result
in such bruises. He has no medical history or prior signs/symptoms
suggestive of an underlying bleeding disorder. The findings are most
consistent with inflicted trauma.

4
Def.'s Mot. Ex. 2.

Video Evidence

Nagurka traveled to Kiddie Academy on May 21, 2015 and spoke with Mattingly,

who provided him with video footage of J.S. 's classroom from May 18, 2015.4 Def. 's

Mot. SOMF 3 ~ 3; June 5 Report at 3. On May 27-28, 2015, Nagurka reviewed all eight

hours of Kiddie Academy video footage depicting the area where J.S. was located on

May 18, 2015. Pl. 's Opp'n 4 ~ 8; Def. 's Reply 3 ~ 8; Def. 's Mot. SOMF 2 ~ 8; June 5

Report at 4. He watched the complete footage at normal speed and with full audio.

Def.'s Mot. SOMF 2 ~ 9.

At two points, the video depicts Cruz-Roldan patting J.S. 's back with sufficient

force that it is audible on camera. Pl. 's Opp'n 4 i1~ 8-9; Def. 's Reply 3 ~~ 8-9;

Surveillance Video of May 18, 2015 ("May 18 Video"), Def. 's Mot. Ex.4,01 :31 :43-

32:00, 02:07:30-43 .5 During both sets of patting, a baby can be heard crying loudly.

May 18 Video O 1 :31 :43-32:00, 02:07:30-43. Cruz-Roldan stated at her deposition that

the first clip depicted J.S. crying. See Cruz-Roldan Dep., Pl. 's Opp'n Ex. 5 [Dkt. #35-5]

44: 1-3. In an investigative report dated a week later, Nagurka described the patting as

"loud and excessive." Def. 's Mot. SOMF 5 ~ 1 O; June 5 Report at 3. In her later

4
Cruz-Roldan notes that Mattingly reviewed the video and saw nothing to suggest that
Cruz-Roldan had done anything wrong. See Pl.'s Opp'n 4 ~ 5. Mattingly testified at her
deposition that she reviewed the day's footage, skipping around to try to determine what
might have happened to J.S., but saw nothing concerning. See Mattingly Dep. 14:3-
19: 12.
5 Plaintiff focuses on solely the first example in her statement of material facts, but the

second example is clear in the cited portion of the video.

5
deposition, Cruz-Roldan explained that the video depicted her burping J.S. Pl. 's Opp'n 4.

i19; Def.'s Reply 3 i19.

Nagurka sent a clip to Dr. Jackson for review of the video depicting the first time

Cruz-Roldan patted J.S. Pl.'s Opp'n 5 i111; Def.'s Reply 3-4 ii 11. 6 On June 1, 2015,

Dr. Jackson emailed Nagurka after reviewing the video clip. Pl. 's Opp'n 5 i1 12; Def. 's

Reply 4 i112. In her email, she stated that "while [Cruz-Roldan] is patting [.T.S.] quite

vigorously," Dr. Jackson "d[id not] think th[e] clip show[ed] enough to explain his

injuries." Id. In addition to the contact he observed on the video, Nagurka observed a

blind spot near the classroom's changing station. Def. 's Mot. SOMF 5 i1 l 1.

Lopez Interviews

Cruz-Roldan's co-worker Lopez, who was working in the United States on a

"green" card, sat for several interviews. Pl. 's Opp'n 3 i12; Def. 's Reply 2 i12. First, on

May 21, 2015, Nakurka interviewed Lopez. Pl. 's Opp'n 4 i16; Def. 's Reply 2 i16. She

denied harming J.S. or witnessing anyone else harming him. Id. Second, on June 1,
.
2015, social worker Jacqueline Simpkins interviewed Lopez with Nagurka present. Pl.'s

Opp'n 5 i113; Def.'s Reply 4 i113. During this interview, Lopez stated that she had not

seen any pinching or other type of improper conduct by Cruz-Roldan. Pl. 's Opp'n 5

i114; Def.'s Reply 4 i114. Third, on June 3, 2015, Nagurka interviewed Lopez once more

about whether she had seen Cruz-Roldan abusing J.S. or other children. Pl.'s Opp'n 5

6
Plaintiff submitted this clip as Exhibit 6 to her Opposition to Summary Judgment. It
begins one hour, twenty-nine minutes, eight seconds into the video submitted by Nagurka
and runs for three minutes, forty-eight seconds. See May 18 Video 01 :29:08-32:56.

6
iii! 16-17; Def.' s Reply 4 ili1 16-17. Another detective, Jenny Alvarenga, was also

present. Pl. 's Excerpts of Tr. of Dep. of Greg B. Nagurka ("Pl. 's Nagurka Dep."), Pl. 's

Opp'n Ex. 3 [Dkt. #35-3] at 52:18-53:7.

This third interview-and whether statements Lopez made implicating Cruz-

Roldan were coerced-is the subject of the most serious dispute between the parties.

Fortunately, the interview was videotaped. See Def. 's Mot. Ex. 5 ("Lopez Interview").

Before the interview began, Nagurka confirmed that the door to the interview room was

unlocked, Lopez Interview 00:01:15-19, 00:03:56-57, that Lopez was not under arrest,

and that she was free to leave at any time, id. 00: 03: 5 8-04: 12. Gesturing to the

(unlocked) shackles on the ground connected to the chair in which Lopez was sitting,

Nagurka, "apologize[d] for the chair." Id. 00:01 :30-33. He then pointed out the camera

and explained that everything was being recorded. Id. 00:01 :26-33. Narguka also

explained that Alvarenga was there to translate if Lopez wanted help understanding

something or if she preferred to speak in Spanish. Id. 00:02:18-50. Lopez confirmed

that she had come to the station for her interview voluntarily. Id. 00:02:00-09.

Several portions of this interview are worth highlighting. Early in the interview,

Lopez re-stated that she had not seen Cruz-Roldan handle any children in a way that was

inappropriate or would cause them injury. Pl.' s Opp' n 5 ~ 17; Def.' s Reply 4 ~ 1 7; Lopez

Interview 00: 13 :55-14: 11. Then, Nagurka showed Lopez the first clip depicting Cruz-

Roldan patting J.S. Def. 's Mot. SOMF 3 ~ 13-2; Pl. 's Opp'n 17 ~ 2; Lopez Interview

00: 14:30-17: 18. In response to questioning by Alvarenga and Nagurka, Lopez said

Cruz-Roldan was "hitting [J.S.] hard" and that Lopez would "never do that to a baby, not

7
that hard." Def. 's Mot. SOMF 3 ,i,i 13-3, 13-4; Lopez Interview 00: 17:32-38, 00: 17:59-

18: 13. Nagurka asked Lopez once again if she had ever seen Cruz-Roldan doing that

before, and Lopez once again said no. Def. 's Mot. SOMF 3 ,i 13-5; Lopez Interview

00: 18:30-35.

At this point, the interview took on a somewhat more confrontational tone.

Nagurka explained that "the issue" was that Lopez was in the room with Cruz-Roldan

and had glanced over while Cruz-Roldan was patting J.S. Id. 00: 19:30-19:50.

Alvarenga asked if it was normal for Cruz-Roldan to burp a baby that way, and Lopez

replied that Cruz-Roldan had done so once before but had explained that it was necessary

to get the air out. Id. 00:21:20-21 :40. After prompting by Alvarenga, Lopez agreed that

she thought it odd when Cruz-Roldan had burped the baby that way previously, but

Lopez added that she had not said anything to Cruz-Roldan. Id. 00:21 :40-22:00. Lopez

explained that this previous time had involved a baby called "N.," and that Cruz-Roldan

had patted him in a "hard" way. Id. at 00:22: 10-22:37.

Nagurka then showed Lopez J.S.' s medical file, pointing to photographs of his

bruises. Id. at 00:25:10-26:15. Nagurka explained that a doctor had concluded that the

injuries had been caused by force or compression, like pinching, and asked if Lopez had

seen anything like that. Id. at 00:26:20-26:52. After Lopez shook her head, Nagurka

told her she had to be honest with them because he did not want her to get caught up in

something she should not be caught up in, given that this was her job and what she

wanted to do going forward. Id. 00:26:52-27:25. Nagurka added:

8
 If you know more than what you're telling us now, you're going to involve
yourself in what you just saw in that video. . . . You' re not under arrest, but
if you saw something ... you have to be able to explain it to us .... This is
your last opportunity.

Id. 00:27:25-28:28. Lopez then said, "I just didn't want to get her in trouble." Id.

00:28:33-37. Nagurka replied:

At this point she's already in trouble, so there's nothing you're going to do.
The only thing you're going to do is get yourself in trouble by not telling us
something that you know .... You want to be with her? You can join her.
But if you don't want to be with her, you got to tell us the truth .... You
want to save your butt? Alright? You want to have a job? You want to go
home at night and be with your family? All that stuff, you have to be honest
with us right now.

Id. 00:28:38-29:12; see also Pl.'s Opp'n 6 ~ 18; Def.'s Reply 5 ~ 18. Lopez then began

to cry, while Alvarenga asked her "What didn't you want to tell us?." Lopez Interview

00:29:13-16. Lopez responded:

Something I already saw happen. When she had the babies, they always cry
with her. When I ... change them, I saw marks on them all the time. Cause
it was unusual that they would cry to hard. So I saw her sometimes pinching
them too. But I never said anything because I didn't want to get her in
trouble, because she helped me get this job.

Id. 00:29:26-55.

She added, "Baby N[.], he suffers so much with her. ... She would pinch him all

the time." Id. 00:30:57-31 :25. Nagurka followed up by asking, yet again, if Lopez had

seen Cruz-Roldan pinch J.S., but Lopez maintained that she did not see Cruz-Roldan

doing so. Id. 00:31 :30-31 :37. However, Lopez believed Cruz-Roldan was responsible,

as she had seen other children with bruises after they had been handled by Cruz-Roldan.

Id. 00:31:45-32:15.

9
 Nagurka asked for one example of when Cruz-Roldan had hurt N., describing

when and how Cruz-Roldan had held him. Lopez indicated that as Cruz-Roldan was

putting the baby down, she would pinch him on his thigh. Id. 00:32:20-33 :08. Nagurka

then explained that this was serious and that Lopez was describing a crime. Id. 00:33: 13-

29. Nagurka added that he thought Lopez was telling the truth, and as a result, she would

probably be able to leave today, after he had the chance to speak with Cruz-Roldan. Id.

00:33:29-34:05. Nagurka then left the room to begin interviewing Cruz-Roldan while

Alvarenga asked Lopez more questions. See id. 00:34:30-35:05; Pl.'s Nagurka Dep.

90: l2--c22.

Cruz-Roldan Interview and Arrest

Cruz-Roldan was also interviewed. First, on May 21, 2015, Nagurka interviewed

her at Kiddie Academy. See Pl.s Nagurka Dep. 19:15-21, 21:4-22:12. Then, on June 3,

2015, Nagurka and Alvarenga interviewed and, ultimately, arrested Cruz-Roldan. Pl. 's

Opp'n 7 i127. This interview, too, was videotaped. See Def.'s Mot. Ex. 6 ("Cruz-Roldan

Interview"). Throughout most of this interview, Cruz-Roldan denied having anything to

do with J.S. 's injuries. Pl. 's Opp'n 7 i127. But after a brief discussion in Spanish with

Alvarenga about the word "pinch," the following exchange took place:

ALVARENGA: Yes, she's saying yes, it is possible that at some point
she did that.
NAGURKA: Okay well, I, I'm not ... the police department we
don't deal with possible - it is either yes or no.
CRUZ-ROLDAN: [Speaking Spanish and pantomiming holding a child.]
ALVARENGA: She's saying yes, when she was holding him yes.

CRUZ-ROLDAN: I'm telling you, when I was hugging him, yeah, maybe
yeah.

10
 NAGURKA: Well, listen, Ms. Patricia, I'm telling you right now,
it's either yes or no.
CRUZ-ROLDAN: No, yes. Yes, of course.
NAGURKA: Did you cause these injuries to [J.S.]. It's yes or no.
Because the video cannot lie. You have to explain the
video.

NAGURKA: Did you cause these bruises that you saw? The photos
and the marks on the back, on the legs, did you do
that? Yes or no?
CRUZ-ROLDAN:· Yeah.
NAGURKA: Yes? Yes you did do it?
CRUZ-ROLDAN: Yes, yeah, maybe.
NAGURKA: Can you explain to me why you did it.
CRUZ-ROLDAN: I did it without intention, Greg, without intention as -
NAGURKA: But you're telling me right now that yes, you did do it.
CRUZ-ROLDAN: Well, because you say or yes or no.
NAGURKA: I'm talking about the photos.
CRUZ-ROLDAN: Um hmm.
NAGURKA: You saw the injuries of [J.S.], okay?
CRUZ-ROLDAN: Um hm. Um hmm.
NAGURKA: That was [J.S.], those were the bruises. The bruises on
- he had twelve bruises on his back, he had these
bruises on his skin right here [pointing to paper], and
these are where the doctor - this is the doctor's
handwriting.
CRUZ-ROLDAN: [Pointing to paper.] But - but - okay, so - there are
these ones when I made there - when I was, yeah,
definitely has it. You know, this one when I was pat
him a little a bit. But this one? On his arm?
NAGURKA: That was the "Y." You saw it was like a "Y"?
CRUZ-ROLDAN: Yeah, the "Y," yeah.
NAGURKA: I mean, but how can you explain that?
CRUZ-ROLDAN: No. I can - I can be responsible to be honest, for that
part and the back, [gesturing to another part of the
drawing] can't tell you that. Yeah, no. To be honest,
when I saw you, when I hear you -
NAGURKA: I appreciate your honesty.
CRUZ-ROLDAN: No. I telling you.

Pl.'s Opp'n 7-8 ~ 27; Def.'s Mot. SOMF 6-7 .~ 15; Cruz-Roldan Interview 01:57:00-

02:00:30. Thereafter, Cruz-Roldan asked to use the restroom. Def. 's Mot. SOMF 8 i116;

11
Cruz-Roldan Interview 02:00:18-27. When she returned, Nagurka arrested her. Def.'s

Mot. SOMF 8 i1i117-18; Cruz-Roldan Interview 02:05:00-12:12. The following day, she

was charged in D.C. Superior Court with one count of attempted second degree cruelty to

children with respect to J.S. Pl. 's Opp'n 8 i128; Def. 's Reply 8 i128.

In support of this charge, Nagurka swore out a Gerstein affidavit providing some

details of the investigation to that point. See June 4, 2015 Affidavit ofNagurka ("June 4

Gerstein Affidavit"), Pl.'s Opp'n Ex. 9 [Dkt. #35-9]. Among these details were Dr.

Jackson's conclusions that J.S. 's bruises were caused by blunt or compressive force, a

statement that the video showed Cruz-Roldan "slapping [J.S.] on his back," and a

statement that Cruz-Roldan "confessed to causing all the lower body bruising to" J.S. id.

Investigation of Alleged Injuries to Other Children

During her June 3, 2015 interview, Lopez alleged that Cruz-Roldan had harmed

children other than J.S. While Nagurka was present, Lopez stated explained that "baby

N[], he suffers so much with her. ... She would pinch him all the time." id. 00:30:57-

31 :25. After Nagurka left the room, Lopez also identified injuries to "C." and "G." See

Pl. 's Opp'n 9 i129; Def. 's Reply 8 ii 29; Lopez Interview 00:36:03-25, 00:40:40-50.7

Lopez also said that she had spoken with another teacher, "Ms. Jenny," and told her what

was going on. Lopez Interview 00:57:42-59:35.

7 At this point, Lopez also made somewhat contradictory statements about hearing Cruz-
Roldan patting J.S. At first, she said that she did hear it, but thereafter she said that the
other babies were crying, so she did not hear it loudly but knew it was happening. Lopez
Interview 00:37:35-38:09.

12
 Nagurka followed up on these allegations but was unable to substantiate them.

Nagurka interviewed the parents of C. and G., but they had no concerns about Cruz-

Roldan's care of their children. Pl. 's Opp'n 9 ,r 30; Def. 's Reply 8 ,r 30. As for N,

Nagurka spoke with Ms. Jenny, but she denied that Lopez had ever mentioned the abuse.

Pl. 's Opp'n 9 ,r 32; Def. 's Reply 9 ,r 32. In addition, when Nagurka later reviewed other

Kiddie Academy video footage (focusing on a different child, A.R.), he kept an eye out

forN. and C. but did not see any indication of abuse. Pl.'s Opp'n 9 ii,r 33-34; Def.'s
Reply 9 ,ri] 33-34; Pl. 's Nagurka Dep. 13 7 :20-13 8: 10, 148: 14-149: 10.

Nagurka also became aware of an allegation that Cruz-Roldan had pinched A.R.

on the cheek.8 On June 15, 2015, Nagurka spoke with A.R.'s parents, who indicated that

they had noticed a bruise on A.R.'s leg around April 1, 2015 and a bruise on A.R.'s right

_cheek around April 24, 2015. Pl.'s Opp'n 10 i1,r 36-37; Def.'s Reply 9-10 ,ri] 36-37;
Def.'s Mot. SOMF 6 ,r 20; Pl.'s Nagruka Dep. 122:10-123:12. A.R.'s parents told

Nagurka that they had asked Cruz-Roldan about the bruise on her cheek, and Cruz-

Roldan told them that A.R. had poked herself with a toy. Pl.'s Opp'n 10 il 36; Def.'s
Reply 9-10 il 36. On June 26, 2015, Nagurka obtained daily health checkup sheets for

A.R. from Mattingly. Def. 's Mot. SOMF 6 ,r 21; June 29, 2015 Report of Investigation

8 At his deposition, relying on an undated set of notes, see Pl. 's Opp'n Ex. 12 [Dkt. #35-
12], Nagurka testified that he became aware of this allegation by reviewing the tape of
Alvarenga's interview with Lopez after he left the room on June 3, 2015. See Pl.ts
NagurkaDep. 85:13-86:16, 88:12-20, 89:19-90:11. Afterreviewingthesamevideo, I
did not hear Lopez identify injuries to A.R. However, she did state during the interview
that Cruz-Roldan "does it to everybody," Lopez Interview 00:34:45-57, and after she
identified Noah and Caroline, she trailed off and explained "I can't remember the name
of the other babies," id. 00:36:10-33.

13
("June 29 Report"), Def.'s Mot. Ex. 7 [Dkt. 34-7] at 2. These sheets indicated that from

April 6-8 2015, A.R. had bruises on both cheeks and that from April 27-29, A.R. had a

bruise on one of her cheeks. Id.; PL's Nagurka Dep. 162:.14-19. Thereafter, on June 28,

2015, Nagurka spoke again with Lopez, who indicated that she had observed Cruz-

Roldan pinch A.R. on a couple of occasions. Def. 's Mot. SOMF 7 ~ 22; Pl. 's Nagurka

Dep. 106:2-109:20. On one of these occasions, Lopez reported that Cruz-Roldan had

grabbed A.R. 's cheek, that the cheek had bruised during the day, and that when A.R. 's

mother had asked what happened, Cruz-Roldan said that A.R. had hit herself with a toy.

Id.

On July 15, 2015, Nagurka checked Kiddie Academy videotape from around this

period and located a clip from April 23, 2015, which showed Cruz-Roldan touching

A.R.'s left cheek. Pl.'s Opp'n 10 ~ 38; Def.'s Reply 10 ~ 38. Nagurka was unable to find

any evidence from his review of the videotapes that Cruz-Roldan had pinched A.R. 's

right cheek. Pl.'s Opp'n 10 ~ 40; Def.'s Reply 10 il 40. Plaintiff has identified a clip

showing another child touching A.R. 's right cheek from around this period, but Nagurka

testified at his deposition that he had not noticed this incident. Pl. 's Opp'n 10-11 ~ 41;

Def.'s Reply 10 ~ 41.

On July 17, 2015, Nagurka swore out an affidavit in support of an arrest warrant

for Cruz-Roldan on another charge of second degree cruelty to children based on her

actionsagainstA.R. Pl.'sOpp'n 11 iJ42;Def.'sReply 10~42;seeJuly 17,2015

Affidavit ofNagurka ("July 17 Affidavit"), Pl. 's Opp'n Ex. 15 [Dkt. #35-15]. This

affidavit recounted the above information, including a statement that Nagurka had

14
observed video of Cruz-Roldan pinching A.R.'s left cheek on April 23, 2015. Pl.'s

Opp'n 11 ,i 43; Def.'s Reply 11 ,i 43; July 17 Affidavit. Nagurka's affidavit did not state

that there was no injury to A.R. 's left cheek, nor did it state that he did not observe Cruz-

Roldan touching A.R.'s right cheek. Pl.'s Opp'n 11 ,i 45; Def.'s Reply 11 ,i 45.

Nagurka's affidavit also made no mention of Lopez's allegations regarding N., C., and

G., and Nagurka's inability to corroborate them. Pl. 's Opp'n 11 il 4 7; Def. 's Reply 11 il

47. On July 15, 2015, a Superior Court judge issued an arrest warrant for Cruz-Roldan

based on this affidavit, Def. 's Mot. SOMF 7 il 24, and on July 22, 2015, Cruz-Roldan

was charged with one count of attempted second degree cruelty to A.R. Pl.'s Opp'n 12

il 48; Def. 's Reply 11 ,i 48.
Cases Dismissed

Sometime after Cruz-Roldan was charged, prosecutors asked Nagurka if there was

any Brady material which needed to be turned over to the defense. Pl. 's Opp'n 14 ,i 61;

Def. 's Reply 14 il 61. At his later deposition, Nagurka could not recall what he told the

prosecutors in response. Id. He stated that the did recognize as Brady material Dr.

Jackson's opinion that the video clip Nagurka sent her did not fully explain J.S.'s

injuries. Pl.'s Opp'n 14 il 60; Def.'s Reply 14 ,i 61.

Ultimately, the cases against Cruz-Roldan were dismissed by the Government

after she filed a motion to dismiss citing Brady violations. Pl.'s Opp'n 14 i1,i 57-58;
Def.'s Reply 14 ,i,i 57-58. Thereafter, the court granted her motions to seal the records

of her criminal cases, finding by a preponderance of the evidence that Cruz-Roldan did

15
not commit either of the offenses for which she was arrested. Pl.'s Opp'n 14 ~ 59; Def.'s

Reply 14 ~ 59. Cruz-Roldan then filed the present suit.

LEGAL STANDARD

Summary judgment is appropriate "only if one of the moving parties is entitled to

judgment as a matter of law upon material facts that are not genuinely disputed." Airlie

Foundation v. IRS, 283 F. Supp. 2d 58, 61 (D.D.C. 2003) (citing Rhoads v. McFerran,

517 F.2d 66, 67 (2d Cir. 1975)); see also Fed. R. Civ. P. 56(a) ("The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law."). A fact is

"material" if it is capable of affecting the substantive outcome of the litigation. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute is "genuine" if the

evidence is such that a reasonable jury could return a verdict for the non-moving party.

See Scott v. Harris, 550 U.S. 372, 380 (2007). "A party asserting that a fact cannot be or

is genuinely disputed must support the assertion" by "citing to particular parts of

materials in the record" or "showing that the materials cited do not establish the absence

or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact." Fed. R. Civ. P. 56(c)(l).

In considering a motion for summary judgment, "[t]he evidence of the non-rnovant

is to be believed, and all justifiable inferences are to be drawn in [its] favor." Liberty

Lobby, 477 U.S. at 255; see also Mastro v. PEPCO 447 F.3d 843, 850 (D.C. Cir. 2006).

The Court must "eschew making credibility determinations or weighing the evidence."

Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). "[W]hen the moving party has

16
carried its burden under Rule 56( c ), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts .... " Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 4 75 U.S. 574 (1986). Instead, to defeat summary judgment,

an opposition must be supported by affidavits, declarations, or other competent evidence,

setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ.

P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required

to provide evidence that would permit a reasonable jury to find in its favor. Laningham

v. Navy, 813 F.2d 1236, 1243 (D.C. Cir. 1987). If the non-movant's evidence is "merely

colorable" or "not significantly probative," summary judgment may be granted. Liberty

Lobby, 477 U.S. at 249-50.

Crucially in this case, when opposing parties submit different versions of the same

story, and one story is "blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment." Scott, 550 U.S. at 380.

ANALYSIS

A. False Arrest

Plaintiff asserts claims of false arrest under both the Fourth Amendment (by way

of§ 1983) and common law. Each claim deals with both Cruz-Roldan's arrest for second

degree cruelty to children as to J.S. and her arrest for attempted second degree cruelty to

children as to A.R. The elements of both a common law false arrest claim and a Fourth

Amendment false arrest claim are nearly identical. Rice v. District of Columbia, 774 F.

Supp. 2d 18, 21 (D.D.C. 2011). Constitutional and common law claims of false arrest are

17
generally analyzed as though they comprise a single cause of action. See, e.g., Scott v.

District of Columbia, 101 F.3d 748, 753-54 (D.C. Cir. 1996); District of Columbia v.

Minor, 740 A.2d 523, 529 (D.C. 1999) (noting that, if the court finds a viable common

law claim of false arrest, then a viable constitutional claim naturally flows, and vice

versa). Because I conclude that Nagurka was legally justified in arresting Cruz-Roldan

on both charges, I grant summary judgment in his favor as to both claims of false arrest.

1. Second Degree Cruelty to Children as to J.S.

First, summary judgment is appropriate on both false arrest counts related to

Nagurka's arrest of Cruz-Roldan for cruelty to J.S. Nagurka arrested Cruz-Roldan for

second degree cruelty to J.S. without first obtaining an arrest warrant. "Where ... a false

arrest claim is based on a warrantless arrest, the defendant officer[] must establish

probable cause to arrest." Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993); see

also Martin v. Malhoyt, 830 F.2d 237,262 (D.C. Cir. 1987) ("It is well settled that an

arrest without probable cause violates the [F]ourth [ A ]mendment. "). Thus, the existence

of probable cause is an affirmative defense that can be raised to defeat an accusation of

false arrest. See Scales v. District of Columbia, 973 A.2d 722, 729 (D.C. 2009). "An

arrest is supported by probable cause if, 'at the moment the arrest was made, ... the facts

and circumstances within [the arresting officers'] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent man in

believing' that the suspect has committed or is committing a crime." Wesby v. District of

Columbia, 765 F.3d 13, 19 (D.C. Cir. 2014), rev'd on other grounds, 138 S. Ct. 577

(2018) (alteration in original) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The test

18
for determining whether or not a police officer had sufficient information and a

reasonable belief that the suspect had committed a crime "is dependent entirely on the

· facts as they actually occurred-i.e., on the 'objective facts-without regard to what a

police officer may have actually, even reasonably, perceived the facts to be." District of

Columbia v. Murphy, 635 A.2d 929,932 (D.C. 1993\

Here, the objective, undisputed ( or indisputable) facts established probable cause

for Nagurka to arrest Cruz-Roldan for second degree cruelty to children. An individual is

guilty of this crime if she "intentionally, knowingly, or recklessly ... [m]altreats a child

or engages in conduct which causes a grave risk of bodily injury to a child." D.C. Code§

22-1101 (b )(1 ). "[I]ntent to harm the child is not required[]" to prove second degree

cruelty to children. Jones v. United States, 67 A.3d 547, 550 (D.C. 2013).

The facts supporting probable cause at the time Nagurka arrested Cruz-Roldan

include:

• J.S., an infant, had suffered injuries.
• According to Dr. Jackson, these injuries were the result of pinching or
compression.
• These injuries were noticed by J.S.'s parents after he returned from daycare in
Cruz-Roldan's classroom.
• Prior to daycare, J.S. had been in his parents' control over the weekend and they
had noticed no injuries.
• Video footage of J.S. 's classroom shows two instances of Cruz-Roldan
holding/audibly patting J.S. on the day the bruises were first noticed.
• J.S. is crying during this interaction.
• The other daycare worker in the room, Lopez, said she believed Cruz-Roldan was
responsible for the injuries and that she had observed Cruz-Roldan pinching and
being rough with children in the past.
• During her own interview, Cruz-Roldan ultimately agreed that she may have been.
responsible for some of the marks on the child, although not intentionally.

19
By contrast, plaintiff points to. the following facts negating probable cause:

• Dr. Jackson, who viewed a clip of the first interaction between J.S. and Cruz-
Roldan, said she did not believe what was shown on video was enough to cause
J.S. 's injuries.
• Lopez had denied knowing anything about J.S.'s injuries during two previous
interviews.
• Lopez only changed her story once Nagurka suggested she would herself be in
trouble.
• Lopez was in the United States on a "green card" (and could be subject to
deportation if she were involved in trouble).
• Cruz-Roldan denied any part in J.S. 's injuries for nearly two hours until Nagurka
pressured her into giving a "yes or no" answer.
• Cruz-Roldan's confession was really nothing of the sort, both because of a
language barrier and because of pressure tactics used by Nagurka.

Although Cruz-Roldan has pointed to some evidence casting doubt on whether she

was responsible for J.S.'s injuries, this evidence does not outweigh the mountain of

objective facts supporting probable cause at the time Nagurka arrested her. Cruz-Roldan

focuses most of her arguments on Lopez's interview and its allegedly coercive nature, but

Nagurka likely would have had probable cause to arrest her even without that interview.9

What's more, the fact that Lopez agreed to be interviewed voluntarily and was told that

the door was unlocked and that she was free to leave all negate the idea that a prudent

man in Nagurka's position would have believed Lopez's will was overborne by his

questioning. Cf United States v. Baird, 851 F.2d 376 (D.C. Cir. 1988) (concluding

interrogation of suspect not custodial or coercive where suspect was told he was free to

leave). Indeed, rather than switching from saying she did not see Cruz-Roldan hurting

9
Cruz-Roldan points to a statement by Nagurka at his deposition that he did not have
probable cause by the start of the Lopez interview, but Nagurka's subjective belief is not
my focus-the objective facts are. See Murphy, 635 A.2d at 932 (D.C. 1993).

20
J.S. to saying that she did, Lopez instead ultimately admitted that she had seen Cruz-

Roldan harming multiple children over the course of her employment and that she

suspected the same was true of J.S. As for Cruz-Roldan's own statements, even·

discounting those that are on the line or questionable, Cruz-Roldan indisputably admitted

that she might, unintentionally, have been responsible for some of J.S. 's injuries.

Combined, the objective, undisputed ( or indisputable) evidence established probable

cause for Nagurka to arrest Cruz-Roldan. Accordingly, I grant summary judgment on

Cruz-Roldan's Fourth Amendment and common law false arrest claims against Nagurka

relating to this arrest.

2. Attempted Second Degree Cruelty to Children as to A.R.

Second, summary judgment is appropriate on both false arrest counts related to

Nagurka's arrest of Cruz-Roldan for attempted cruelty to A.R. Unlike the previous

arrest, Nagurka arrested Cruz-Roldan for attempted second degree cruelty to .T.S. after

obtaining an arrest warrant. An arrest pursuant to a valid warrant typically provides no

basis for a false arrest claim because "the fact that a neutral magistrate has issued a

warrant is the clearest indication that the [arresting] officers acted in an objectively

reasonable manner." Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). As the

Supreme Court has explained, '" [i]n the ordinary case, an officer cannot be expected to

question the magistrate's probable-cause determination' because '[i]t is the magistrate's

responsibility to determine whether the officer's allegations establish probable cause and,

if so, to issue a warrant comporting in form with the requirements of the Fourth

Amendment."' Id. at 547 (alteration in original) (quoting United States v. Leon, 468 U.S.

21
. 897,921 (1984)). Nevertheless, the deference given to a warrant "gives way when the

affidavit upon which the magistrate relied 'contain[ ed] a deliberately or recklessly false

statement,"' Lane v. District of Columbia, 211 F. Supp. 3d 150, 173 (D.D.C. 2016)

(alteration in original) (quoting Franks v. Delaware, 438 U.S. 154, 165 (1978)), and

those false statements were "material," id "[A]llegedly false information in an affidavit

is material only if, when it is 'set to one side, the affidavit's remaining content is

insufficient to establish probable cause."' United States v. Ali, 870 F. Supp. 2d 10, 27

(D.D.C. 2012) (quoting Franks, 438 U.S. at 156).

Here, Cruz-Roldan points to a single allegedly false statement in Nagurka's

affidavit in support of the warrant for Cruz-Roldan's arrest. The affidavit stated that

Nagurka reviewed video footage of April 23, 2015 and saw Cruz-Roldan "pinch" A.R. 's

left cheek, after which A.R. began to cry. See July 17 Affidavit 2. Cruz-Roldan contends

that the video does not necessarily show a pinch and is just as consistent with Cruz-

Roldan's explanation that she was removing something from A.R.'s face. See Pl.'s

Opp'n 33. She also points to testimony from an expert she has retained that it was

impossible to review the video and state with any degree of certainty that what happened

was a pinch. See id; see also Dep. of Dr. Michael D. Lyman ("Lyman Dep."), Pl.'s

Opp'n Ex. 23 [Dkt. #35-23] at 76:3-77: 1. Having reviewed the video myself, Cruz-

Roldan certainly touched A.R. 's cheek, but it is not clear whether that touch was a pinch

or a lighter touch. See Video of April 23, 2015, Pl. 's Opp'n Ex. 25 [Dkt. #35-25]

01:09:09.

22
 Even ifl were to assume that Nagurka's statement was deliberately or recklessly

false, I would have to assess whether the alleged falsehood was immaterial because the

remainder of the affidavit established probable cause for the Superior Court judge to

order Cruz-Roldan arrested for attempted second degree cruelty to children. Once again,

an individual is guilty of second degree cruelty to children if she "intentionally,

knowingly, or recklessly ... [m]altreats a child or engages in conduct which causes a

grave risk of bodily injury to a child." D.C. Code§ 22-1 l0l(b)(l). D.C. Code§ 22-1803

criminalizes attempting to commit a crime. The elements of attempted second degree

cruelty to children are an intent "to commit the acts which resulted in [ an] injury ( or the

grave risk of injury) to [a] child," Smith v. United States, 813 A.2d 216,219 (D.C. 2002)

(emphasis added), and "some act towards [the crirnes] commission," id. (quoting

Blackledge v. United States, 447 A.2d 46, 49 (D.C. 1982) (internal quotation marks

omitted)). Thus, ifNagurka's affidavit established probable cause to believe that Cruz

intentionally touched A.R. with sufficient force to leave a bruise, then it established

probable cause to arrest her for attempted second degree cruelty to children.

I conclude that even without the alleged falsehood about what Nagurka observed

on the video, the affidavit established sufficient probable cause for the judge to issue the

arrest warrant. The remainder of the affidavit states:

• A.R. 's parents reported that A.R. started at Kiddie Academy on March 18, 2015.
Thereafter, they noticed a, bruise on A.R. 's leg around April 1, 2015. They noticed
another bruise on A.R.' s right cheek that was visible after daycare on April 24,
2015. They noticed another bruise on A.R.'s right cheek around May 14, 2015.
This last bruise was confirmed by a doctor.

23
 • A.R. 's daily health checklist from Kiddie Academy stated that on April 6-8, 2015,
A.R. had a bruise on both cheeks. On April 27-29, 2015, A.R. also had a bruise
on her cheek.
• A witness stated that A.R. was in Cruz-Roldan's care during the months of April
and May 2015. The witness stated that she saw Cruz-Roldan "pinch" A.R. 's leg
when.placing A.R. in a carriage, probably sometime in April 2015. The witness
stated that A.R. had been complaining a lot that morning.
• The same witness stated that she observed Cruz-Roldan pinch A.R. 's cheek and
that later that day a bruise developed on A.R. 's cheek where Cruz-Roldan had
pinched her. This probably occurred sometime towards the end of April 2015.

July 17 Affidavit at 1-2. This affidavit cites evidence from three sources (A.R. 's parents,

Kiddie Academy health checkups, and an eyewitness) that A.R. had a bruise on her cheek

in late-April 2015. The eyewitness identifies Cruz-Roldan as the source of the bruise.

And the eyewitness earlier observed Cruz-Roldan pinch A.R. 's leg, leaving a bruise, on a

day A.R. was complaining a lot, suggesting a possible motive for the pinching. Taken

together, these statements provided probable cause even absent the allegedly false

testimony about the video.

In addition to Nagruka's alleged falsehood with respect to the video, Cruz-Roldan

also contends that Nagurka omitted crucial information about Lopez that would have

undermined Lopez's statements and thereby negated probable cause. See Pl. 's Opp'n at

32-34. In contrast to the allegedly false information I excised above, I must now include

allegedly omitted information and determine whether the affidavit still establishes

probable cause. See Lane v. District of Columbia, 211 F. Supp. 3d 150, 173 (D.D.C.

2016) (citing United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008)). I

conclude that it does.

The information about Lopez that Nagurka allegedly omitted in his affidavit was:

24
 • Lopez's statements prior to the June 3, 2015 interview that she had not witnessed
Cruz-Roldan abusing J.S.
• Lopez's failure to mention that she had seen Cruz-Roldan abusing A.R. during the
June 3 interview at which she first stated that Cruz-Roldan was harming children.,
• Nagurka's inability to confirm-through the video evidence he reviewed-
Lopez's allegations that Cruz-Roldan would pinch N. "all the time" and that Cruz-
Roldan injured C. 's wrist.

See Pl. 's Opp'n 32-34.10

Even ifNagurka had included this information in his affidavit, it would not have

negated probable cause. First, it is true that Lopez made prior statements that she did not

see Cruz-Roldan harming J.S. But Nagurka's July 17 affidavit makes no reference to

J.S. 's case or Lopez's statements about it at all. So the addition of information that

Lopez had previously denied seeing Cruz-Roldan harm a different child before ultimately

stating that she believed Cruz-Roldan was responsible for harming that different child

would have no effect on the probable cause to believe that Cruz-Roldan harmed A.R.

Second, Lopez's failure to mention A.R. during the June 3 interview when listing

children she saw Cruz-Roldan harming is somewhat more relevant. But Lopez stated

during this interview that she could not remember the names of all the children she had

seen Cruz-Roldan harming. Had Nagurka included the full story about this interview-

that Lopez reported Cruz Roldan "does itto everybody," including J.S., N., C., G., and

10
Additionally, Cruz-Roldan contends that Nagurka omitted from his affidavit the fact
that he coerced Lopez into making her statements about Cruz-Roldan. See Pl.'s Opp'n
34. As I explained above, the objective, undisputed ( or indisputable) video evidence does
not support this allegation. But even if it did, Nagurka's duty was to submit an affidavit
that he believed to be truthful, and there is no evidence that Nagurka believed Lopez's
statement was coerced. See Franks, 438 U.S. at 165 (requiring information in affidavit to
be '"truthful' in the sense that he information put forth is believed or appropriately
accepted by the affiant as true").

25
other babies whose names she could not remember, see discussion supra n.8-that would

not have overcome probable cause to believe Cruz-Roldan harmed A.R. Third, it is

likewise true that Nagurka was unable to confirm the injuries Lopez reported witnessing

to N. and C. through video evidence. But he testified at his deposition that he merely

kept an eye out for injuries to N. and C. when reviewing video footage he pulled and

reviewed it focusing specifically on A.R. Inclusion in the affidavit of the fact that

. Nagurka did not witness Cruz-Roldan harming N. and C. while he was reviewing footage

of the two days on which he suspected A.R. had been injured would not have negated

probable cause as to A.R.

In sum, based on 1'J agurka' s July 17, 2015 affidavit, a neutral magistrate

determined that probable cause existed to arrest Cruz-Roldan for attempted second

degree cruelty to children as to A.R. Neither the single alleged false statement in nor the

several alleged omissions from Nagurka's affidavit would have altered that probable

cause finding. Accordingly, I grant summary judgment on Cruz-Roldan's Fourth

Amendment and common law false arrest claims against Nagurka relating to this arrest.

B. Battery

Cruz-Roldan also alleges that Nagurka committed battery when he arrested her at

the conclusion of her June 3, 2015 interview. See Pl.'s Opp'n 49-50. As I explained

above, Nagurka had probable cause to make this arrest, so he was entitled to use

reasonable force to effectuate it. See Etheredge v. District of Columbia, 635 A.2d 908,

916 (D.C. 1993) ("A police officer has a qualified privilege to use reasonable force to

effect an arrest, provided that the means employed are not 'in excess of those which the

26
 actor reasonably believes to be necessary."' (quoting Jackson v. District of Columbia,

412 A.2d 948,956 (D.C. 1979))). Still, "a claim for ... battery may be established if

excessive force was used to maintain the arrest." Jackson, 412 A.2d at 955. Here, Cruz-

Roldan does not even allege that Nagurka used excessive force in arresting her. And

having reviewed video of the arrest, there is no evidence of excessive force. Cruz-Roldan

Interview 02:05:00-12: 12. Therefore, I will grant summary judgment to Nagurka on

Cruz-Roldan's claim for battery.

C. Intentional Infliction of Emotional Distress

Cruz-Roldan's next allegation is that Nagurka intentionally inflicted emotional

distress on her by the way he investigated the case against her. "To succeed on a claim of

intentional infliction of emotional distress, a plaintiff must show (1) extreme and

. outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3)

causes the plaintiff severe emotional distress." Armstrong v. Thompson, 80 A.3d 177,

189 (D.C. 2013) (internal quotation marks omitted). To satisfy the first requirement,

"[t]he conduct must be so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community." Id. (internal quotation marks omitted).

Cruz-Roldan does not argue that the fact of an arrest itself was "extreme and

outrageous," and she could not succeed on such an argument because "probable cause for

arrest [would] defeat[] ... [that] claim[]." Harris v. U.S. Dep 't of Veterans Affairs, 776

F.3d 907, 916-17 (D.C. Cir. 2015). Instead, she focuses on Nagurka's conduct with

respect to Lopez and his alleged concealment of exculpatory information from judges and

27
prosecutors reviewing the case. Specifically, Cruz-Roldan argues that the following facts

could be found by a reasonable juror and could lead that juror to find Nagurka's conduct

extreme and outrageous:

• With regard to the investigation and charges involving J.S.:
o Nagurka pressured Lopez during the June 3, 2015 interview. As a result of
that pressure, Lopez falsely implicated Cruz-Roldan.11
o In the affidavit Nagurka submitted to the court in support of charging Cruz-
Roldan with second degree cruelty, he intentionally overstated the extent of
her "confession" by claiming that she had confessed to causing the injuries
to J.S. 'slower body, when in fact she stated that she might, unintentionally,
have been responsible for some of J.S. 's. injuries. 12
o In the same affidavit, Nagurka stated that a witness (i.e., Lopez) had heard
Cruz-Roldan hitting J.S. but intentionally omitted that the same witness
later contradicted herself on this point. See discussion supra 12 n.7. 13
o In the same affidavit, Nagurka deliberately omitted Dr. Jackson's opinion
that the clip Nagurka sent to her of Cruz-Roldan making contact with J.S. 's
back was not enough to explain J.S.'s injuries, which was exculpatory
information.
o In the same affidavit, Nagurka deliberately omitted exculpatory information
regarding Lopez, namely that he pressured her into implicating Cruz-
Roldan and that Lopez made prior statements that she had not seen Cruz-
Roldan harming J.S.

• With regard to the investigation and charges involving A.R.:
o Nagurka deliberately omitted exculpatory information from his affidavit in
support of Cruz-Roldan's arrest, namely that Nagurka was unable to
corroborate allegations Lopez ultimately made identifying other children
Cruz-Roldan had harmed.

11
Cruz-Roldan frames this possible jury finding as "[Nagurka] coerced Marya Lopez into
making false claims against Ms. Cruz-Roldan." Pl. 'sOpp'n 46. Even drawing all
inferences and resolving all disputes in Cruz-Roldan's favor, this overstates (by
oversimplifying) what a reasonable juror could find. Given my review of the video of the
interview, the most a reasonable juror could find is that Nagurka applied some pressure
(typical of a police interview) to Lopez and that as a result of this pressure she stated for
the first time that she had seen Cruz-Roldan harming other children.
12
Cruz-Roldan frames this possible jury finding as "[Nagurka] falsely claimed [Cruz-
Roldan] had confessed." Pl.'s Opp'n 46.
13
Cruz-Roldan frames this possible jury finding as "[Nagurka] made a false statement
concerning a witness that she had heard plaintiff hitting JS." Pl.'s Opp'n 46.

28
 o Nagurka falsely claimed to see Cruz-Roldan pinch A.R. on video when the
video only showed her touching A.R.' s cheek.

• After these charges were filed:
o When asked by prosecutors if there was any exculpatory material in the
case, Nagurka deliberately failed to bring to their attention Dr. Jackson's
opinion or the fact that Lopez had implicated Cruz-Roldan only after being
pressured by him.14

These allegations, if found by the jury to be true, would paint a troubling picture

of a police officer so bent on securing a conviction against Cruz-Roldan that he

overstated the evidence against her and disregarded, downplayed, and even concealed

evidence tending to exculpate her. But as troubling as such findings would be, they

would still not meet the high bar of "extreme and outrageous" conduct under D.C. law.

A review of cases applying this standard to the actions of police officers under D.C. law

reveals several with comparable or more troubling fact patterns that the court concluded

were not sufficiently "extreme and outrageous" to go to a jury. See, e.g., Minch v.

District of Columbia, 952 A.2d 929,932, 940-41 (D.C. 2008) (affirming grant of

summary judgment on IIED claim because police officer's threat that innocent murder

suspect would be put in jail for life if he did not confess was not extreme and

outrageous); Smith v. District of Columbia, 882 A.2d 778, 781-86, 793-94 (D.C. 2005)

(affirming directed verdict on IIED claim because police officer's use of an illegal

chokehold that broke plaintiffs jaw, followed by police officer rubbing plaintiffs jaw,

14
Cruz-Roldan also proposes that a jury could find that "Nagurka continued to threaten
Lopez with incarceration during the pendency of the prosecutions in order to ensure her
continued cooperation." Pl.'s Opp'n 47. She cites no evidence supporting this assertion,
and I have seen none.

29
were not extreme and outrageous); Smith v. United States, 121 F. Supp. 3d 112, 124-26

(D.D.C. 2015) ( dismissing IIED claim based on allegations that police officers

exaggerated and embellished plaintiffs unlawful conduct).

The case closest on point that did proceed to a jury, District of Columbia v. Tulin,

994 A.2d 788 (D.C. 2010), is readily distinguishable. There, the D.C. Court of Appeals

accepted a jury verdict in the plaintiffs favor on an IIED claim brought against a police

officer who, according to the plaintiff, had falsely and maliciously reported that the

plaintiff had been driving recklessly and had effectively ordered a subordinate to arrest

the plaintiff, in order to camouflage the officer's own responsibility for the car accident

that had resulted from the plaintiffs purported crime. Id. at 800-03; see also Smith, 121
I
F. Supp. 3d at 125 (distinguishing Tulin). Here, by contrast, even if a jury found that

N agurka exaggerated aspects of Cruz-Roldan's statement and what he could glean from

the video, he certainly did not fabricate the fact that multiple children had suffered harm.

Accordingly, Nagurka's conduct, even if as bad as a reasonable jury could find it to be,

would not be "extreme and outrageous" enough to support an IIED claim.15 Therefore, I

will grant summary judgment to Nagurka on Cruz-Roldan's claim for intentional

infliction of emotional distress.

15
Moreover, it is unclear how Cruz-Roldan could prove the third requirement of an IIED
claim, that she suffered severe emotional distress. Here, there does not appear to be
evidence sufficient to support such a finding. See Kotsch v. District of Columbia, 924
A.2d 1040, 1045-46 (D.C. 2007) ("[ A]ppellant did not seek medical assistance for
physical or psychological injury. Therefore ... without an expert, the record does not
provide evidence from which a reasonable jury could find that [the officers'] conduct was
so 'extreme and outrageous' that it caused severe emotional distress to appellant.").

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D. Negligence

Finally, Cruz-Roldan claims that Nagurka acted negligently in investigating the

case against her. Specifically, in her complaint, she alleges that Nagurka acted

negligently in the way he "interview] ed] witnesses and convey[ ed] exculpatory evidence

to prosecutors." Com pl. ,i 7. The plaintiff in a negligence action bears the burden of

proof on three issues: (1) the applicable standard of care, (2) a deviation from that

standard by the defendant, and (3) a causal relationship between that deviation and the

plaintiffs injury. Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988).

Nagurka makes two arguments in favor of summary judgment on the negligence

counts. First, he claims that the "public duty" doctrine bars recovery. But even a cursory

review of this doctrine, under which the District and its agents generally "owe no duty to

provide public services to particular citizens as individuals," demonstrates that it does not

apply here. Hines v. District a/Columbia, 580 A.2d 133, 136 (D.C. 1990). The public

duty doctrine is about nonfeasance, not the misfeasance alleged by Cruz-Roldan. "The

public duty doctrine 'deals with the question whether public officials have a duty to

protect individual members of the general public against harm from third parties or other

independent sources,"' and "[a ]s such, it is wholly inapposite in a case such as this, where

the alleged harm was brought about directly by the· officer[] [him]sel[fj, and where there

is no allegation of a failure to protect." Liser v. Smith, 254 F. Supp. 2d 89, 102 (D.D.C.

2003) (quoting District of Columbia v. Evans, 644 A.2d 1008, 1017 n.8 (D.C. 1994)).

Second, Nagurka insists that Cruz-Roldan has failed to establish a national

standard of care. The applicable standard of care in this sort of case, which involves the

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exercise of professional judgment, is a national one that must be establis!1ed by expert

testimony. See Etheredge v. District of Columbia, 635 A.2d 908, 917 (D.C. 1993);

Holder v. District a/Columbia, 700 A.2d 738, 741 (D.C. 1997). The expert must identify

a "concrete standard upon which a finding of negligence could be based." District of

Columbia v. Carmichael, 577 A.2d 312, 315 (D.C. 1990). The expert must clearly

articulate what the standard is and how it was violated by defendants, which is to be done

by comparing "specific standards with specific facts or conduct." Id.; see also District of

Columbia v. Moreno, 647 A.2d 396,400-01 (D.C. 1994) (rejecting expert testimony that

"briefly referred to standards without eliciting what the standards are or what they

require"). If the expert fails to do so, summary judgment is appropriate. See Clark v.

District of Columbia, 708 A.2d 632, 63 5 (D.C. 1997) (granting directed verdict where

expert failed to articulate national standard of care against which to compare defendants'

acts).

Here, Cruz-Roldan's proposed expert is Dr. Michael D. Lyman ("Lyman"). See

Expert Report of Michael D. Lyman ("Lyman Report"), Pl.'s Opp'n Ex. 22 [Dkt. #35-

22]. Lyman is a former criminal investigator and police instructor who is currently a

professor at the Columbia College Department of Criminal Justice and Human Services

and who has authored seven books dealing with various areas of policing. See Lyman

Report 2-3. According to his C.V., Lyman has provided expert testimony about police

practices over 200 times, including at trial in numerous federal civil cases. See Lyman

C.V., Pl.'s Opp'n Ex. 21 [Dkt. #35-21] 4, 6-30. In his expert report, Lyman refers to

national standards articulated by the International Association of Chiefs of Police

32
("IACP") as to proper procedures for police interrogations and the handling of

exculpatory material. See Lyman Report 11-13, 15-17. Nagurka does not, as a general

matter, contest Lyman's use ofIACP guidelines to establish national standards of care,

and these guidelines have been used before to articulate national standards of police

conduct in the District. See Sherrod v. McHugh, 334 F. Supp. 3d 219, 259-60 (D.D.C.

2018) (approving standard of care established by relying on IACP standards); Hetzel v.

United States, No. 91-cv-2986, 1993 WL 294794, at *3-4 (D.D.C. June 1, 1993) (citing

IACP standards as establishing standard of care); see also District of Columbia v.

Chambers, 965 A.2d 5, 8-9 (D.C. 2009) (granting a directed verdict on police negligence

claim but noting without comment use ofIACP standards).

Nagurka does contend, however, that the IACP guidelines relating to

interrogations are inapposite here because they refer to custodial interrogations of

suspects rather than third-party witnesses. Def. 's Mot. 32. Plaintiff responds by citing to

Lyman's deposition, where he stated that there is a "kind of gray area from when a

witness or even a victim ... implicate[ s] themselves at least in the eyes of the detective

and they become a suspect" and that as a result the same standards applied both to

suspects being interrogated and to interviewees. Pl.'s Opp'n 45-46 (quoting Lyman Dep.

54:1-5). Even if that is the case, however, I conclude that this "gray area," and the

general language Lyman cites in this particular IACP policy were not specific enough to

articulate a national standard of care against which Nagurkas conduct can be measured.

Therefore, I GRANT summary judgment for the defendant as to Cruz-Roldan's

negligence claim based on Lopez's interview.

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 The remaining negligence claim, based on Nagurka's alleged failure to turn over

exculpatory evidence to prosecutors, is another matter. Here, Lyman articulates a simple

and easily-followed standard based on IACP guidelines that police have a duty to notify

prosecutors of exculpatory evidence, which IACP guidelines define as "evidence that is

favorable to the accused" and that "is material to the guilt, innocence, or punishment of

the accused." Lyman Report 16. Nagurka does not challenge this standard. Rather, he

argues that there is no evidence to support it, as the only evidence in the record is

Nagurka's statement that he turned exculpatory evidence over to prosecutors. See Def.'s

Mot. 21. Not so. As Cruz-Roldan outlines in her opposition, there is evidence from

which a reasonable juror could disbelieve Nagurka. See Pl. 's Opp'n 43-45. Indeed, the

timing of the ultimate disclosure of Dr. Jackson's email followed by the Government's

choice to dismiss the case is especially suspect. As such, I DENY summary judgment on

Cruz-Roldan's negligence claim based on Nagurka's alleged failure to inform prosecutors

of exculpatory evidence in the case.

CONCLUSION

For the foregoing reasons, Nagurka's [Dkt. #34] Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART. As this ruling disposes of all the federal

questions in this case, the Clerk of Court is hereby ORDERED to REMAND this case

34
back to the Superior Court of the District of Columbia. 16 A separate Order consistent

with this decision accompanies this Memorandum Opinion.

~
RICHARD J. LEON
United States District Judge

16
A district court may choose to retain jurisdiction over, or dismiss, pendent state law
claims after federal claims are dismissed. See Edmondson & Gallagher v. Alban Towers
Tenants Ass'n, 48 F.3d 1260, 1263 (D.C. Cir. 1995).

35