McGaughey v. District of Columbia et al

MOTION to Dismiss First Amended Complaint, And Alternative, MOTION for Summary Judgment

D.D.C.August 19, 2008

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALEXANDRIA MCGAUGHEY, : : Plaintiff, : : v. : Case No. 1:07-CV-01498 (RJL) : DISTRICT OF COLUMBIA, et al., : : Defendants. : ____________________________________: THE DISTRICT OF COLUMBIA’S MOTION TO DISMISS FIRST AMENDED COMPLAINT AND ALTERNATIVE MOTION FOR SUMMARY JUDGMENT Defendant District of Columbia (“District”), by and through undersigned counsel, hereby moves this Court, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Plaintiff’s First Amended Complaint as she has failed to state a claim for which she is entitled to relief from the District. The public duty doctrine bars Plaintiff’s claims against the District. Plaintiff was never in the District’s custody and had no special relationship with the District, such that the District owed her no duty. Alternatively, the District seeks summary judgment pursuant to Fed. R. Civ. P. 56. In support of this motion, Defendant attaches hereto a Memorandum of Points and Authorities, a Statement of Undisputed Facts, as well as a proposed Order. Because this is a dispositive motion, the District is not required to seek Plaintiff’s consent before filing. Respectfully Submitted, PETER J. NICKLES Acting Attorney General, District of Columbia Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 1 of 23 GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division ____/s/ Patricia A. Jones_____________ PATRICIA A. JONES [428132] Chief, General Litigation Sec. IV __/s/ Dwayne C. Jefferson_____________ DWAYNE C. JEFFERSON [980813] Assistant Attorney General One Judiciary Square 441 4th St., N.W., 6th Floor South Washington, D.C. 20001 (202) 724-6649; (202) 727-6295 p | (202) 741-0554 f dwayne.jefferson@dc.gov COUNSEL FOR THE DISTRICT OF COLUMBIA Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 2 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALEXANDRIA MCGAUGHEY, : : Plaintiff, : : v. : Case No. 1:07-CV-01498 (RJL) : DISTRICT OF COLUMBIA, et al., : : Defendants. : ____________________________________: STATEMENT OF UNDISPUTED MATERIAL FACTS SUPPORTING MOTION FOR SUMMARY JUDGMENT The District of Columbia (“District”), by and through undersigned counsel, herein submits and sets forth the following material facts to which there is no material dispute: 1. Alexandria McGaughey was 19 years of age at all times relevant to this litigation. See Plaintiff Deposition at pp. 16:6-7 and 28:13-21 (attached as Exhibit “C”). 2. Plaintiff has no personal recollection of the alleged rape that occurred at a private house party on December 9, 2006. See Plaintiff Deposition at pp. 38:12-18, 45:13-18 and 56:5-8 (attached as Exhibit “C”); see also Plaintiff Responses to Howard University’s Interrogatories at No. 1 (attached as Exhibit “A”). 3. Plaintiff visited Howard University Hospital twice on December 9, 2006. On her first visit, Plaintiff was not transported to the hospital by the D.C. Metropolitan Police Department (“MPD”) or any other District employee; instead, she was transported by Howard University’s campus escort service. See Plaintiff Deposition at p. 54:1-4 (attached as Exhibit “C”). 4. After her first visit, Plaintiff was not transported or escorted from the hospital by Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 3 of 23 MPD, but took a shuttle back to the campus. See Plaintiff Deposition at p. 62:16- 17 (attached as Exhibit “C”). 5. Plaintiff did not contact MPD or the D.C. Rape Crisis Center regarding her alleged sexual assault on December 9, 2006. In fact, Plaintiff’s friends and/or sister did not contact MPD about the alleged assault until after Plaintiff arrived for her second visit to Howard University Hospital. See Plaintiff Deposition at pp. 143:14 - 144:7 (attached as Exhibit “C”); see also Plaintiff Responses to District Hospital Partners’ Admission Requests at Nos. 16 and 31 (attached as Exhibit “B”); Sade Diké Deposition at p. 141 (attached as Exhibit “D”); Kerston Reed Deposition at p. 139 (attached as Exhibit “E”). 6. MPD arrived at Howard University Hospital during Plaintiff’s second visit, and spoke with her about the sexual assault allegations. See Plaintiff Deposition at pp. 123:13 - 124:8 (attached as Exhibit “C”). 7. Plaintiff was not present when MPD spoke with Howard University Hospital personnel. See Plaintiff Deposition at p. 144:13-15 (attached as Exhibit “C”). 8. Plaintiff did not know the last name of the person who allegedly raped her. In fact, all she had was made-up name. See Plaintiff Deposition at p. 330:7-22 (attached as Exhibit “C”). 9. When MPD was contacted about Plaintiff’s alleged sexual assault, she had already visited Howard University Hospital twice, and had already been denied a rape kit. See Plaintiff Deposition at p. 115:2-7 (attached as Exhibit “C”). Respectfully Submitted, PETER J. NICKLES Acting Attorney General for the District of Columbia Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 4 of 23 GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division ____/s/ Patricia A. Jones_____________ PATRICIA A. JONES [428132] Chief, General Litigation Sec. IV __/s/ Dwayne C. Jefferson_____________ DWAYNE C. JEFFERSON [980813] Assistant Attorney General One Judiciary Square 441 4th St., N.W., 6th Floor South Washington, D.C. 20001 (202) 724-6649; (202) 727-6295 p | (202) 741-0554 f dwayne.jefferson@dc.gov COUNSEL FOR THE DISTRICT OF COLUMBIA Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 5 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALEXANDRIA MCGAUGHEY, : : Plaintiff, : : v. : Case No. 1:07-CV-01498 (RJL) : DISTRICT OF COLUMBIA, et al., : : Defendants. : ____________________________________: MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING THE DISTRICT OF COLUMBIA’S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR SUMMARY JUDGMENT In support of its Motion to Dismiss and alternative Motion for Summary Judgment, the District submits the following memorandum of points and authorities. STATEMENT OF FACTS Plaintiff Alexandria McGaughey was 19 years of age at all times relevant to this litigation. See First Amended Complaint at ¶ 1; see also Plaintiff Deposition at pp. 16:6- 7 and 28:13-21 (attached as Exhibit “C”). Plaintiff seeks to proceed against the District on several negligence theories - negligent hiring/training/supervision; negligence; and negligent failure to investigate. See First Amended Complaint at ¶¶ 107 through 120. Plaintiff alleges that she went to a private house party on December 8, 2006. While still at the party on December 9, 2006, she believes she was given a date rape drug and likely sexually assaulted. See First Amended Complaint at ¶¶ 1, 16 and 18. She was not on government owned property or sexually assaulted by a known District government employee. See Amended Complaint, generally. Plaintiff was never in the actual physical Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 6 of 23 custody or control of members of the D.C. Metropolitan Police Department (“MPD”) or any other District government employee. See Amended Complaint, generally. Plaintiff visited Howard University Hospital twice on December 9, 2006. On her first visit, Plaintiff was not transported to the hospital by the D.C. Metropolitan Police Department (“MPD”) or any other District employee; instead, she was transported by Howard University’s campus escort service. See First Amended Complaint at ¶ 26; see also Plaintiff Deposition at p. 54:1-4 (attached as Exhibit “C”). During Plaintiff’s first visit to Howard University Hospital, no one called MPD or the D.C. Rape Crisis Center. See First Amended Complaint at ¶ 27. Plaintiff was not tested for presence of a date rape drug during her first visit at Howard hospital. See First Amended Complaint at ¶ 32. In fact, Plaintiff’s friends were told that there was nothing that could be done because Plaintiff was intoxicated and incoherent. See First Amended Complaint at ¶ 33. When it became clear that Howard University Hospital would not administer a rape kit, Plaintiff’s friends pleaded with hospital personnel to simply examine the vomiting, and to stabilize her condition. See First Amended Complaint at ¶ 40. After her first visit, Plaintiff was not transported or escorted from the hospital by MPD, but took a shuttle back to the campus. See Plaintiff Deposition at p. 62:16-17 (attached as Exhibit “C”). Plaintiff did not contact MPD or the D.C. Rape Crisis Center regarding her alleged sexual assault on December 9, 2006. In fact, Plaintiff’s friends and/or sister did not contact MPD about the alleged assault until after Plaintiff arrived for her second visit to Howard University Hospital. See Plaintiff Deposition at pp. 143:14 - 144:7 (attached as Exhibit “C”); see also Plaintiff Responses to District Hospital Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 7 of 23 Partners’ Admission Requests at Nos. 16 and 31 (attached as Exhibit “B”); Sade Diké Deposition at p. 141 (attached as Exhibit “D”); Kerston Reed Deposition at p. 139 (attached as Exhibit “E”). MPD arrived at Howard University Hospital during Plaintiff’s second visit, and spoke with her about the sexual assault allegations. See Plaintiff Deposition at pp. 123:13 - 124:8 (attached as Exhibit “C”). Plaintiff avers that MPD refused to authorize a sexual assault medical forensic examination, or do any further investigation, and was rude and dismissive of her compliant. See First Amended Complaint at ¶¶ 48-49. Plaintiff avers that MPD officers inappropriately classified her sexual assault as a “miscellaneous incident.” See First Amended Complaint at ¶ 52. Plaintiff concedes that Howard University Hospital was not required to obtain police authorization to conduct a forensic examination. See First Amended Complaint at ¶¶ 56-57. PROCEDURAL POSTURE Plaintiff filed this action on August 21, 2007. [Docket # 1]. During the course of discovery, plaintiff was granted leave to take 20 depositions, and did so. See Minute Order (dated 04/16/08). On June 16, 2008, the District filed its Motion for Judgment on the Pleadings. [Docket # 41]. On July 14, 2008, Plaintiff moved to enlarge discovery and for leave to take approximately 15 more depositions. [Docket # 47]. The District as well as the Howard Defendants opposed Plaintiff’s motion. [Docket # 48, # 51 and # 52]. There is no need for additional discovery in this case as it relates to the District because no amount of discovery will establish the existence of a duty owed to Plaintiff by the District. Discovery in this case closed on July 16, 2008. See Minute Order (dated 04/16/08). Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 8 of 23 On August 18, 2008, Plaintiff filed her First Amended Complaint against the named defendants. Plaintiff has included additional facts in the First Amended Complaint, but her theories of liability against the District have not changed. [Docket # 1 and # 58]. As will be shown below, no special circumstances exist to create a duty owed Plaintiff by the District in this case. Thus, as a matter of law, this Court must dismiss Plaintiff’s First Amended Complaint against the District, or enter summary judgment in the District’s favor. STANDARDS OF REVIEW I. DISMISSAL PURSUANT TO FED. R. CIV. P. 12(b)(6). Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is appropriate when a moving party has failed to set forth a claim for which he/she is entitled to relief. The determination of whether a dismissal is proper must be made on the face of the pleadings alone. See Telecommunications of Key West, Inc. v. United States, 757 F.2d 1330, 1335 (D.C. Cir. 1985); Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986). A plaintiff is required to plead enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). In order to survive a motion to dismiss, a plaintiff’s complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp., 127 S.Ct. at 1964-65. “When the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 1966. Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 9 of 23 II. SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56 Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c). Only disputes over material facts, or facts that might significantly affect the outcome of a suit under the governing law, preclude entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). Under the summary judgment standard, a “complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is not “a disfavored procedural shortcut,” Celotex, 477 U.S. at 327, rather it is an “integral part” of the endeavor of civil rules as a whole “to secure the just, speedy, and inexpensive determination of every action.” Id., quoting Fed. R. Civ. P. 1. Rule 56 must be construed with “due regard . . . for the rights of persons opposing claims or defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. To obtain judgment under Rule 56, the District need only “identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which [it] believes demonstrate the absence of a genuine issue of material fact,” and show its entitlement to judgment as a matter of law. The District need not negate an element of the plaintiff’s case. Celotex, 477 U.S. at 323. Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 10 of 23 The non-movant must produce “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. These facts must have “significant probative” force “tending to support the complaint.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). ARGUMENT III. PLAINTIFF HAS NOT SUFFICIENTLY PLED ANY FACTS UPON WHICH THE DISTRICT COULD BE NEGLIGENTLY LIABLE. In any negligence action, a plaintiff bears the burden of proof on the following three issues in order to prevail: 1. the applicable standard of care; 2. a deviation from that standard by the defendant; and 3. a causal relationship between the deviation and the plaintiff's injury. Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984); District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978). The existence of a legal duty under negligence is ordinarily a question of law for the court. See Zhou v. Jennifer Mall Restaurant, 534 A.2d 1268, 1274 (D.C. 1987); In re Sealed Case, 67 F.3d 956, 968 (D.C. Cir. 1995). Plaintiff avers that the District owed her a duty to ensure that evidence concerning her sexual assault was collected and was not lost or destroyed. See First Amended Complaint at ¶ 113. According to Plaintiff, because the District receives federal funds that require it to certify that it pays for sexual assault forensic exams for any victim who seeks one (regardless whether the victim reports the crime to police) the District owed her a duty not to interfere with her attempt to have such an examination conducted. See First Amended Complaint at ¶ 113. None of the allegations advanced in Plaintiff’s First Amended Complaint show any affirmative duty owed her by the District. See First Amended Complaint, generally. Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 11 of 23 As will be shown below, Plaintiff’s lawsuit must be dismissed because the public duty doctrine bars her court action. Plaintiff was neither in the District’s care or custody, and did not otherwise have any special relationship with the District to create any duty. Absent a duty of care, the District cannot be held answerable in negligence. IV. THE PUBLIC DUTY DOCTRINE BARS PLAINTIFF’S CLAIMS Courts have routinely explained that the District “`and its agents are under no general duty to provide public services . . . to any particular individual citizen,' and cannot, therefore, ordinarily be held liable for negligently failing to provide such services.” Platt v. District of Columbia, 467 A.2d 149, 151 (D.C. 1983), quoting Warren v. District of Columbia, 444 A.2d 1, 4 (D.C. 1981) (en banc); see also Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 561 (D.C. Cir. 1993) (holding that the District is generally immune from tort liability for actions taken by its officers in the course of providing public services). Courts have recognized an exception to the general rule of no liability in instances where there exists a "special relationship" between the District and a member of the public. A special relationship may arise when two conditions are met: "(1) a direct contact or continuing contact between the victim and the governmental agency or official; and (2) a justifiable reliance on the part of the victim." Platt, 467 A.2d at 151. In applying these factors, Courts have recognized exceptions to the public duty doctrine in special circumstances, such as when police actively use a private citizen in the investigation, arrest, or prosecution of a criminal. See, e.g., Hines v. District of Columbia, 580 A.2d 133, 138 (D.C. 1990). In the present case, Plaintiff has failed to plead any facts to establish the existence Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 12 of 23 of a special relationship between herself and the District of Columbia. See First Amended Complaint, generally. Plaintiff was of legal age at the time of the events that gave rise to this lawsuit. See First Amended Complaint at ¶ 1; see also Plaintiff Deposition at pp. 16:6-7 and 28:13-21 (attached as Exhibit “C”). She was never in police custody or otherwise in the custody of any District employee. See First Amended Complaint, generally. The incident giving rise to Plaintiff’s allegations did not occur on public property. The alleged sexual assault occurred at a private house, and Plaintiff was allegedly denied a forensic examination while at Howard University Hospital - a non- District facility. See First Amended Complaint, generally. Plaintiff never contacted MPD. Police did not promise to provide her special services, nor does she allege any justifiable reliance on police officers based on her interaction with them. See Amended Complaint, generally. While Plaintiff’s sister, Plaintiff’s friends and/or hospital personnel contacted MPD during Plaintiff’s second visit to the hospital, and MPD officers spoke with Plaintiff when they arrived at the hospital, there are no allegations in the First Amended Complaint to support the proposition that Plaintiff reasonably relied on any promises made to her by MPD officers. See First Amended Complaint, generally. A. TWO CONTACTS BETWEEN PLAINTIFF AND MPD IS NOT ENOUGH TO ESTABLISH A SPECIAL RELATIONSHIP The first prong of the special relationship test requires that there be some form of privity between the District and Alexandria McGaughey that sets her apart from the general public. That is, any direct contact between plaintiff and the District must be “different from the type of contact that the District has with the general public” See Nealon, 669 A2d at 693, citing Powell v. District of Columbia, 602 A.2d 1123, 1130 (D.C.1992). MPD’s two visits to Howard University Hospital do not create privity Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 13 of 23 between plaintiff and MPD. If this were the case, any citizen from the general populace would repeatedly contact MPD to report their complaint simply to manufacture privity. This is not the law in this jurisdiction or elsewhere. In Wanzer v. District of Columbia, 580 A.2d 127 (D.C. 1990), the Court upheld the dismissal of a negligence claim brought by the estate of a decedent, Mr. Lee, who called 911 complaining of a terrible headache and requested an ambulance. Mr. Lee was advised by the dispatcher to take an aspirin, and no ambulance was dispatched - Mr. Lee died two days later of a stroke. Having concluded that the public duty doctrine was applicable to the District’s public ambulance service (911), the Court found that: [t]o give rise to a special relationship, the agency’s response to the private party must in some demonstrable way exceed the response generally made to other members of the public. 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. Id. at 132 (emphasis added) (citations omitted). In Hines v. District of Columbia, the Court noted: Our case law makes it clear that the mere fact that an individual has emerged from the general public and become an object of the special attention of public employees does not create a relationship which imposes a special legal duty. 580 A.2d 133, 138 (D.C. 1990). A special relationship does not arise simply because an individual requests, and a District employee agrees to render, public assistance. See Morgan v. District of Columbia, 468 A.2d 1306, 1313 (D.C. 1983) (en banc); Warren, 444 A.2d 1, 2 & 6 (D.C. 1981) (en banc). Furthermore, even when the District renders some assistance, no actionable duty arises even if that assistance is negligent unless the Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 14 of 23 nature of the assistance rendered creates a special relationship. Morgan, 468 A.2d at 1317; Warren, 444 A.2d at 2. MPD cannot be held liable simply because of its visit to Howard University Hospital regarding Plaintiff’s claim of sexual assault. While summoning police may be considered in determining whether there was “direct contact” between plaintiff and the District, it cannot by itself create the requisite special relationship. “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 132. Thus, the mere fact that MPD officers responded to Howard University Hospital and spoke with plaintiff on two occasions, in itself, does not create a special relationship, and dismissal of this lawsuit and/or judgment as a matter of law must be granted to the District. B. PLAINTIFF HAS FAILED TO ESTABLISH THAT SHE JUSTIFIABLY RELIED ON MPD. Not only are plaintiff’s “direct contact” allegations deficient, the First Amended Complaint fails to recite any express MPD assurances on which plaintiff justifiably relied to her detriment. In fact, Plaintiff concedes throughout the First Amended Complaint that there were no police promises or guarantees made to her during her interaction with them. See First Amended Complaint, generally. Courts adhere to a strict interpretation of the justifiable reliance prong of the special relationship test. Taylor v. District of Columbia, 776 A.2d 1208, 1218 (D.C. 2001). Justifiable reliance means particular or special reliance. Morgan, 468 A.2d at 1315; see also Platt v. District of Columbia, 467 A.2d 149, 151 (D.C.1983). More than general reliance is needed, and plaintiff must either act or fail to act in such a way as to Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 15 of 23 show particular reliance upon the actions of MPD officers. “Liability is established [if the agency has] specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.” Id. In Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006), the plaintiff lodged wrongful death and survival action claims against the District of Columbia for the death of her son, Benjamin Varner, a Gallaudet University freshman. Just prior to Varner’s death, another student, Eric Plunkett, was murdered. The D.C. Metropolitan Police Department arrested Thomas Minch for the Plunkett murder, though it allegedly had evidence that Joseph Mesa had stolen Plunkett’s credit card and had used it to make purchases. Varner claimed that if MPD had exercised reasonable care in investigating the Plunkett murder, then Mesa would have been swiftly apprehended, and would not have had an opportunity to kill Varner. Further, in an effort to establish the existence of a special relationship with the District, Plaintiff highlighted the fact that - between the Plunkett and Varner homicides - Metropolitan Police attended an on-campus meeting during which Gallaudet University students, including Benjamin Varner, were assured that they would receive special protection, that their security would be accorded highest priority, and that it was safe for them to remain in school. The District Court found that no special relationship existed between Varner and the District of Columbia. Varner appealed, and the D.C. Court of Appeals found that: [U]nder the public duty doctrine, public officials such as police officers cannot be held liable for harm caused by criminals unless there was a “special relationship” between the victim and the official. See, e.g., Platt v. District of Columbia, 467 A.2d 149 (D.C.1983). In order to find that a “special relationship” had been created, a two-prong test applies: there must be either [sic] a direct or continuing contact between the victim and the police department, and there must be a justifiable reliance on that contact Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 16 of 23 by the victim. See id. In the present [Varner] case, neither prong of the test is met. Plaintiff argues that a special relationship had been created by the prior murder of a Gallaudet student, and because the MPD had a presence on the Gallaudet campus. [Citation to record omitted.] Plaintiff presents no argument or evidence, however, to show that Benjamin Varner himself had any direct or continuing contact with the MPD. Merely because the police are present in an area does not create a special relationship with the people in that area. To the contrary, finding that a special relationship exists in such a situation would obviate the public duty doctrine, as a special relationship would be created between the police and the people in any area in which the police are doing their job. Thus, absent any information or argument by plaintiff that a special relationship had been created between Detective Cimiotti and Benjamin Varner himself, as opposed to the entire Gallaudet student body, the public duty doctrine applies to this case. 891 A.2d 260, 275. Courts have found justifiable reliance when it is determined that the victim has been lulled into a false sense of security by the municipality’s voluntary undertaking, which has thereby induced the victim to either relax their own vigilance, or to forego other available avenues of protection. In the present case, Plaintiff suggested to police that a likely sexual assault had already occurred; thus, none of her post-assault conversations with MPD could not have induced Plaintiff to relax her own vigilance or forego other available avenues of protection - i.e., vigilance in avoiding the underlying sexual assault, or vigilance in seeking the administration of a rape kit. There is no evidence that any MPD officer, through promises or actions, assumed any affirmative duty to protect or provide services to Plaintiff, either before or after the alleged assault. Justifiable reliance cannot be said to exist in the circumstance. In Nichol v. District Metropolitan Police Department, 444 A2d 1 (D.C. 1981) (en banc), a case quite similar to the instant case, a man was assaulted in his car and the Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 17 of 23 police came to his assistance... At the behest of the police officer, the victim ceased efforts to obtain the identity of his attackers. Because the officer failed to obtain the information, the victim was unable to perfect a lawsuit against his assailants. Plaintiff’s subsequent lawsuit against the District of Columbia for failure to file a crime report was dismissed by the trial court for failure to state a claim upon which relief could be granted. In affirming the trial court’s ruling, the Court of Appeals held that the police officer’s failure to prepare an accident report does not constitute the degree of “affirmative negligence” necessary to create either a “special relationship” with the crime victim or detrimental “reliance”. Id; see also Auto World Inc. v. District of Columbia, 627 A.2d 11 (D.C. 1993) (no duty to provide motor vehicle registration information); Hines v. District of Columbia, 580 A.2d 133, 136 (D.C. 1990) (the District has no duty to provide public services to any particular person). Under the public duty doctrine, MPD had no special duty to prepare or provide an incident report to an injured party - much less any duty for which it can be held liable for its alleged failure to prepare or provide the “sexual assault” incident report demanded herein by plaintiff. Accordingly, dismissal of Plaintiff’s First Amended Complaint against the District is required. V. MPD GENERAL ORDERS CREATE NO SPECIAL RELATIONSHIP AND NO DUTY Plaintiff contends that MPD holds itself out as, “having policies expressly designed to respect and properly treat sexual assault victims, including those victimized by date rape drugs.” See First Amended Complaint at ¶ 3. These allegations are insufficient to establish any special relationship between Plaintiff and the District. The District’s MPD officers’ alleged failure to comply with sexual assault response procedures does not support a claim against the District because no special relationship Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 18 of 23 was created by the mere fact that Plaintiff requested a rape kit from Howard University Hospital, it was refused, and MPD officers would not thereafter “authorize” MPD to provide Plaintiff with a rape kit. MPD officers exercise discretionary authority when deciding whether to escalate or terminate an investigation of purported criminal wrongdoing. Plaintiff avers that MPD’s investigation of her sexual assault charge was negligent, and that the District negligently hired, trained and/or supervised these officers. See First Amended Complaint at ¶¶ 107-112. When MPD officers investigated Plaintiff’s sexual assault allegations, each one of their acts (and the decisions upon which these acts were based) were discretionary, and did not create a legal duty to Plaintiff. Even assuming arguendo that certain aspects of the officers’ investigation were somehow misaligned with the District’s sexual assault procedures (which is expressly denied), the District cannot be made answerable in tort liability since the District had no specific duty to Plaintiff. Moreover, courts have repeatedly made it clear that internal agency guidelines do not create a special class of persons to whom an actionable duty is owed. See, e.g., Hines, 580 A.2d at 138 (no special relationship between the District and persons needing emergency medical services even though a statute imposed a fee for ambulance service for those able to pay for it; a Mayor's Order provided that the Fire Department "will provide emergency ambulance treatment and transportation on demand" and a regulation established standards for providing emergency medical service); Morgan, 68 A.2d at 1310 (no special relationship between the District and the wife of police officer who shot her despite the District's failure to investigate wife's complaint that husband had threatened her with his service revolver in violation of general police order requiring investigation Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 19 of 23 of, and written report about, any complaint that a police officer had improperly used service revolver); Warren, 444 A.2d at 3 (no special relationship was created between MPD officers and crime victims when police, in investigating 911 calls for police assistance, failed "to follow standard police investigative procedures" with the result that three women were brutally raped and beaten). The fundamental police function to enforce criminal laws would be unduly hampered if law enforcement decisions were, as a general rule, subject to after-the-fact judicial review through private tort litigation. Such a rule would also place police officials in the untenable position of ensuring/guaranteeing the personal safety of every member of the public or, otherwise, be subject to civil damages. Governmental entities must be protected against the excessive fiscal impact that would necessarily ensue if every police investigatory decision was generally subject to tort liability. The public is instead protected by mechanisms (other than civil negligence actions) that hold individual officials accountable for dereliction of duty - these include internal disciplinary proceedings or formal criminal prosecutions. Plaintiff’s failure to plead sufficient facts to support a negligence cause of action against the District bars her claim, and dismissal is appropriate. WHEREFORE, for the foregoing reasons, the District of Columbia moves this Honorable Court to grant it dismissal of Plaintiff’s First Amended Complaint and/or summary judgment. Respectfully Submitted, PETER J. NICKLES Acting Attorney General for the District of Columbia Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 20 of 23 GEORGE C. VALENTINE Deputy Attorney General, Civil Litigation Division ____/s/ Patricia A. Jones_____________ PATRICIA A. JONES [428132] Chief, General Litigation Sec. IV __/s/ Dwayne C. Jefferson_____________ DWAYNE C. JEFFERSON [980813] Assistant Attorney General One Judiciary Square 441 4th St., N.W., 6th Floor South Washington, D.C. 20001 (202) 724-6649; (202) 727-6295 p | (202) 741-0554 f dwayne.jefferson@dc.gov COUNSEL FOR THE DISTRICT OF COLUMBIA Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 21 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALEXANDRIA MCGAUGHEY, : : Plaintiff, : : v. : Case No. 1:07-CV-01498 (RJL) : DISTRICT OF COLUMBIA, et al. : : Defendants. : ______________________________________ ORDER UPON CONSIDERATION of the District of Columbia’s Motion to Dismiss, any opposition thereto, and the entire record in this matter, it is this __ day of _____________, 2008, hereby: ORDERED that the Motion to Dismiss is GRANTED for the reasons set forth in the motion; and it is, FURTHER ORDERED: that Plaintiff’s case is DISMISSED WITH PREJUDICE as to Defendant District of Columbia. ______________________________________ HON. RICHARD J. LEON United States District Court for the District of Columbia Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 22 of 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ALEXANDRIA MCGAUGHEY, : : Plaintiff, : : v. : Case No. 1:07-CV-01498 (RJL) : DISTRICT OF COLUMBIA, et al. : : Defendants. : ______________________________________ ORDER UPON CONSIDERATION of the District of Columbia’s Motion for Summary Judgment, any opposition thereto, and the entire record in this matter, it is this __ day of _____________, 2008, hereby: ORDERED that the Motion for Summary Judgment is GRANTED for the reasons set forth in the motion; and it is, FURTHER ORDERED: that Plaintiff’s case is DISMISSED WITH PREJUDICE as to Defendant District of Columbia. ______________________________________ HON. RICHARD J. LEON United States District Court for the District of Columbia Case 1:07-cv-01498-RJL Document 59 Filed 08/19/2008 Page 23 of 23 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 1 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 2 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 3 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 4 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 5 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 6 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 7 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 8 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 9 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 10 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 11 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 12 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 13 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 14 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 15 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 16 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 17 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 18 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 19 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 20 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 21 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 22 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 23 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 24 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 25 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 26 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 27 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 28 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 29 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 30 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 31 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 32 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 33 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 34 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 35 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 36 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 37 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 38 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 39 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 40 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 41 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 42 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 43 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 44 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 45 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 46 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 47 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 48 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 49 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 50 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 51 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 52 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 53 of 54 Case 1:07-cv-01498-RJL Document 59-2 Filed 08/19/2008 Page 54 of 54