                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ABDUL GREENE,                 )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 12-109 (RWR)
                              )
JODY SHEGAN,                  )
                              )
     Defendant.               )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Abdul Greene brings various claims of misconduct

against Metropolitan Police Department Officer Jody Shegan.

Shegan objects to Magistrate Judge Alan Kay’s memorandum order

granting Greene’s motion to compel discovery from the District of

Columbia.   Shegan also moves for a stay of Magistrate Judge Kay’s

memorandum order pending resolution of Shegan’s objections to the

memorandum order, or in the alternative, for a protective order.

In addition, Greene moves to have the docket reflect that the

District of Columbia is a defendant in this matter.   Because the

magistrate judge’s decision was not clearly erroneous or contrary

to law, Shegan’s objections will be overruled.    Since Shegan

fails to demonstrate good cause for a protective order, his

motion will be denied.   Because the District of Columbia is a

defendant, Greene’s motion will be granted.
                                -2-

                             BACKGROUND

      Greene filed a complaint against Shegan in both Shegan’s

individual and official capacities in the D.C. Superior Court.

Compl. ¶ 4.   Greene’s complaint did not name the District of

Columbia as a defendant.   However, Greene served Mayor Vincent

Gray and District of Columbia Attorney General Irvin Nathan with

a copy of the summons and complaint.      Pl.’s Reply to Def.’s Opp’n

to Mot. to Compel D.C. to Respond to Pl.’s Disc. Reqs., Ex. 1.

Shegan removed the case to this court.

      Greene served discovery requests on the District of

Columbia.   Pl.’s Mot. to Compel D.C. to Respond to Pl.’s Disc.

Reqs., Ex. 1.   The District of Columbia refused to respond to the

requests arguing that it is not a party in this matter.     Id., Ex.

2.   Greene filed a motion to compel the District of Columbia to

respond to his discovery requests.    In his memorandum order,

Magistrate Judge Kay found that the District of Columbia had

notice of the action, having been timely served with a copy of

the summons and complaint.   He also held that since Shegan was

sued in his official capacity, the District of Columbia is a

defendant in this matter, citing Kentucky v. Graham, 473 U.S. 159

(1985), and Atchinson v. District of Columbia, 73 F.3d 418 (D.C.

Cir. 1996).   Mem. Order, Sept. 21, 2012 at 3-4.

      Shegan now objects to the magistrate judge’s ruling on the

motion to compel for three reasons.    First, Shegan argues that
                                 -3-

service of the complaint and summons on the District of Columbia

alone did not give the District of Columbia notice of Greene’s

suit.1   Shegan’s Obj’ns to and Mot. for Review of Magistrate

Judge Alan Kay’s Sept. 21, 2012 Order at 6–7.   Second, Shegan

argues that Magistrate Judge Kay erred in applying Graham to this

case because Graham is meant to apply only to suits against

officials who hold positions at a level high enough that the

official may be considered the alter ego of the State.    Id. at

8–10.    Third, Shegan urges that the District of Columbia did not

have an opportunity to respond to Greene’s complaint since Greene

did not name the District of Columbia as a defendant and, as an

unnamed party, the District of Columbia could not make filings

through the electronic case filing system.    Id. at 7.   Greene

counters that the District of Columbia had notice of the suit

because it was served with a copy of the summons and the

complaint that named Shegan in his official capacity.     Pl.’s Mem.

of P. & A. in Opp’n to the Obj’ns of Jody Shegan to the

Magistrate’s Order Granting Pl.’s Mot. to Compel at 2.    Greene

further argues that the District of Columbia had an opportunity

to respond to his complaint by filing a responsive pleading in

person at the Clerk’s Office.   Id. at 2–3.   Greene urges that


1
  Before Magistrate Judge Kay, Shegan maintained that the
District of Columbia had not been “served with the Summons and
Complaint as a party.” Def.’s Opp’n to Mot. to Compel at 4.
Now, however, Shegan’s argument assumes that the District was
served with a copy of the summons and the complaint.
                                -4-

Shegan misinterpreted Graham and that a suit against Shegan in

his official capacity is a suit against the District of Columbia.

Id. at 3–4.

     Shegan also moves for a stay of Magistrate Judge Kay’s

memorandum order pending resolution of Shegan’s objections to the

memorandum order, or in the alternative, for a protective order.

Greene opposes.

     Greene meanwhile moves to have the docket reflect that the

District of Columbia is a defendant in this matter.   Shegan

argues that the motion should be denied because the District of

Columbia is not a defendant.   See Def.’s Opp’n to Pl.’s Mot. to

Have the Docket Reflect that the D.C. is a Def. at 2.

                             DISCUSSION

I.   OBJECTIONS, AND LISTING THE DISTRICT AS A DEFENDANT

     Federal Rule of Civil Procedure 72(a) and Local Civil Rule

72.2(b) allow a party to object to a magistrate judge’s decision.

“[A] district judge may modify or set aside any portion of a

magistrate judge’s order . . . found to be clearly erroneous or

contrary to law.”   LCvR 72.2(c); see also Payne v. District of

Columbia, 859 F. Supp. 2d 125, 130-31 (D.D.C. 2012) (“A

magistrate judge’s findings are entitled to great

deference, . . . and may be modified or set aside only if found

to be clearly erroneous or contrary to law[.]” (internal

quotation marks omitted)).
                                 -5-

     Official capacity suits “‘generally represent only another

way of pleading an action against an entity of which an officer

is an agent.’”   Kentucky v. Graham, 473 U.S. at 165-66 (quoting

Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n.55

(1978)).   “As long as the government entity receives notice and

an opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against the

entity.”   Id. at 166.   A court treats suits against officials in

their official capacities as suits against the state because an

official capacity suit “is not a suit against the official

personally, for the real party in interest is the entity.”    Id.;

see also Atchinson, 73 F.3d at 424.

     Shegan maintains that serving the District of Columbia in

line with the procedure set forth in the rules of the Superior

Court of the District of Columbia2 did not provide the District

of Columbia with sufficient notice or an opportunity to respond.

Shegan does not identify any authority to support his novel

position, and case law in this district is to the contrary.   See,

e.g., Waker v. Brown, 754 F. Supp. 2d 62, 64-65 (D.D.C. 2010)

(substituting the District of Columbia for defendants sued in

their official capacities although the plaintiff had served the


2
  D.C. Super. Ct. R. Civ. P. 4(j)(1) (“Service shall be made upon
the District of Columbia by delivering . . . or mailing . . . a
copy of the summons, complaint and initial order to the Mayor of
the District of Columbia (or designee) and the [Attorney General]
of the District of Columbia (or designee).”).
                                  -6-

Mayor of the District of Columbia but not the Attorney General

for the District of Columbia); Bennett v. Henderson, Civil Action

No. 10-1680 (RWR), 2011 WL 285871 at *1 n.3 (D.D.C. Jan. 28,

2011) (“Because the plaintiff served the . . . Attorney General,

the District of Columbia [had] sufficient notice of this action.”

(citing Henderson v. Williams, Civil Action No. 05-1966 (RWR),

2007 WL 778937 (D.D.C. Mar. 12, 2007))).    Likewise, Shegan did

not cite any precedent to support his assertion that Graham

applies only to high level officials under an alter ego theory.

Moreover, Shegan errs in asserting that the District of Columbia

could not file a responsive pleading without being a named

defendant in this matter.    See United States District Court for

the District of Columbia, Electronic Case Filing System User’s

Manual at 22-23 (2010).     Third parties can submit civil documents

to the Clerk’s Office by email and, when electronic case filing

is not available, users may bring “a hard copy and electronic

version of the pleading to the Courthouse and file it in

person[.]”   Id.

     Here, Officer Shegan was sued in his official capacity, the

District of Columbia received notice of the suit when Greene

served the Mayor and the Attorney General with a copy of the

summons and complaint, and the District of Columbia had an

opportunity to respond.   While Greene could easily have avoided

all ambiguity by simply naming the District of Columbia in the
                               -7-

complaint as a defendant from the beginning, the District of

Columbia is a real party in interest.   It was not clearly

erroneous for the magistrate judge to find that the District of

Columbia is a defendant in this matter and grant Greene’s motion

to compel discovery from the District of Columbia.   In addition,

the District of Columbia shall be listed on the docket as a

defendant.3




3
  Shegan opposes Greene’s motion to list the District of Columbia
on the docket as a defendant claiming that Greene failed to
comply with Local Civil Rule 7(m) before filing this motion.
Local Rule 7(m) requires that
      [b]efore filing any nondispositive motion in a civil
      action, counsel shall discuss the anticipated motion
      with opposing counsel . . . in a good-faith effort to
      determine whether there is any opposition to the relief
      sought and, if there is opposition, to narrow the areas
      of disagreement. . . . A party shall include in its
      motion a statement that the required discussion
      occurred, and a statement as to whether the motion is
      opposed.
LCvR 7(m). Greene’s motion states that “[p]rior to filing this
motion, plaintiff’s counsel discussed this matter with opposing
counsel and they take the position that the District is not a
defendant in this case.” Pl.’s Mot. to Have the Docket Reflect
that the D.C. is a Def. at 2. Shegan states, and Greene does not
rebut, that although the parties discussed whether the District
of Columbia is a defendant, Shegan “did not know that Plaintiff
intended to file the instant motion until it was received through
the electronic filing notice.” Def.’s Opp’n to Pl.’s Mot. to
Have the Docket Reflect that the D.C. is a Def. at 1. While
Greene’s counsel could have avoided any ambiguity by plainly
stating in the discussion that he would file this motion, he did
include in his motion that he discussed with opposing counsel the
subject of the motion, and determined that his position was
opposed. As Shegan does not contest the accuracy of Greene’s
representations, Greene’s motion will not be dismissed on this
ground.
                                 -8-

II.   MOTION FOR A PROTECTIVE ORDER

      Federal Rule of Civil Procedure 26(c) provides that upon a

motion, a “court may, for good cause, issue an order to protect a

party or person from annoyance, embarrassment, oppression, or

undue burden or expense[.]”    The movant bears the burden of

showing good cause.   Klayman v. Judicial Watch, Inc., 247 F.R.D.

19, 22 (D.D.C. 2007) (citing Alexander v. FBI, 186 F.R.D. 71, 75

(D.D.C. 1998)).   Here, Shegan offers no good cause or explanation

as to why the court should issue a protective order.    His motion

for a protective order, then, will be denied.

                         CONCLUSION AND ORDER

      Because Magistrate Judge Kay’s memorandum order granting

Greene’s motion to compel discovery from the District of Columbia

was not clearly erroneous or contrary to law, Shegan’s objections

will be overruled.    Because the District of Columbia is a

defendant, Greene’s motion to name the District of Columbia as a

defendant on the docket will be granted.    Since Shegan fails to

allege good cause for a protective order under Rule 26(c), his

motion will be denied.    Accordingly, it is hereby

      ORDERED that Shegan’s objections [26] to Magistrate Judge

Kay’s memorandum order be, and hereby are, OVERRULED.   It is

further

      ORDERED that Greene’s motion [16] to have the docket reflect

that the District of Columbia is a defendant in this matter be,
                                -9-

and hereby is, GRANTED.   The Clerk is directed to list the

District of Columbia as a defendant on the docket in this matter.

It is further

     ORDERED that Shegan’s motion [27] to stay Magistrate Judge

Kay’s September 21, 2012 memorandum order or, in the alternative,

for a protective order be, and hereby is, DENIED.

     SIGNED this 22nd day of January, 2013.



                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge
