                        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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