RICHARD J. LEON, District Judge.
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. Compl. [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 infliction of emotional distress (Count III), common law false arrest (Count IV), and Fourth Amendment false arrest (Count VI).
Nagurka now moves for summary judgment on all Cruz-Roldan's remaining claims. See Def.'s Mot. for Summ. J. ("Def's 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
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 indisputable—that are material to deciding this motion.
On May 18, 2015, J.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.'s mother 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 ¶ 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.'s mother 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 of Investigation ("June 5 Report"), Def.'s Mot. Ex. 1 [Dkt. #34-1] 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.'s mother, who provided a timeline of her discovery of J.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.'s mother 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.'s mother 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:
Def.'s Mot. Ex. 2.
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.
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 ¶¶ 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.
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 ¶ 11; Def.'s Reply 3-4 ¶ 11.
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 ¶ 2; Def.'s Reply 2 ¶ 2. First, on May 21, 2015, Nakurka interviewed Lopez. Pl.'s Opp'n 4 ¶ 6; Def.'s Reply 2 ¶ 6. 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 ¶ 13; Def.'s Reply 4 ¶ 13. 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 ¶ 14; Def.'s Reply 4 ¶ 14. 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 ¶¶ 16-17; Def.'s Reply 4 ¶¶ 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. 00:03:58-04:12. 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 ¶ 17; 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 that hard." Def.'s Mot. SOMF 3 ¶¶ 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 ¶ 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:
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:
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:
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.
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. 90:12-22.
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 ¶ 27. 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 ¶ 27. But after a brief discussion in Spanish with Alvarenga about the word "pinch," the following exchange took place:
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 ¶ 16; Cruz-Roldan Interview 02:00:18-27. When she returned, Nagurka arrested her. Def.'s Mot. SOMF 8 ¶¶ 17-18; 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 ¶ 28; Def.'s Reply 8 ¶ 28.
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 of Nagurka ("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.
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 ¶ 29; Def.'s Reply 8 ¶ 29; Lopez Interview 00:36:03-25, 00:40:40-50.
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 ¶ 30; Def.'s Reply 8 ¶ 30. As for N, Nagurka spoke with Ms. Jenny, but she denied that Lopez had ever mentioned the abuse. Pl.'s Opp'n 9 ¶ 32; Def.'s Reply 9 ¶ 32. In addition, when Nagurka later reviewed other Kiddie Academy video footage (focusing on a different child, A.R.), he kept an eye out for N. and C. but did not see any indication of abuse. Pl.'s Opp'n 9 ¶¶ 33-34; Def.'s Reply 9 ¶¶ 33-34; Pl.'s Nagurka Dep. 137:20-138:10, 148:14-149:10.
Nagurka also became aware of an allegation that Cruz-Roldan had pinched A.R. on the cheek.
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 ¶ 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 actions against A.R. Pl.'s Opp'n 11 ¶ 42; Def.'s Reply 10 ¶ 42; see July 17, 2015 Affidavit of Nagurka ("July 17 Affidavit"), Pl.'s Opp'n Ex. 15 [Dkt. #35-15]. This affidavit recounted the above information, including a statement that Nagurka had observed video of Cruz-Roldan pinching A.R.'s left cheek on April 23, 2015. Pl.'s Opp'n 11 ¶ 43; Def.'s Reply 11 ¶ 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 ¶ 45; Def.'s Reply 11 ¶ 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 ¶ 47; Def.'s Reply 11 ¶ 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 ¶ 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 ¶ 48; Def.'s Reply 11 ¶ 48.
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 ¶ 61; Def.'s Reply 14 ¶ 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 ¶ 60; Def.'s Reply 14 ¶ 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 ¶¶ 57-58; Def.'s Reply 14 ¶¶ 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 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.
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)(1).
In considering a motion for summary judgment, "[t]he evidence of the non-movant 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 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., 475 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.
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 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.
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 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:
By contrast, plaintiff points to the following facts negating probable cause:
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.
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 J.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. 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.
Even if I 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 § 22-1101(b)(1). 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 crime's] commission," id. (quoting Blackledge v. United States, 447 A.2d 46, 49 (D.C. 1982) (internal quotation marks omitted)). Thus, if Nagurka'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:
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:
See Pl.'s Opp'n 32-34.
Even if Nagurka 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 it to everybody," including J.S., N., C., G., and 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 Nagurka'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.
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 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.
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 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:
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 plaintiff's jaw, followed by police officer rubbing plaintiff's jaw, 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 plaintiff's 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 plaintiff's 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 plaintiff's purported crime. Id. at 800-03; see also Smith, 121 F. Supp. 3d at 125 (distinguishing Tulin). Here, by contrast, even if a jury found that Nagurka 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.
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." Compl. ¶ 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 plaintiff's 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 of 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[f], 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 exercise of professional judgment, is a national one that must be established by expert testimony. See Etheredge v. District of Columbia, 635 A.2d 908, 917 (D.C. 1993); Holder v. District of 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, 635 (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 ("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 of IACP 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 of IACP 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 Nagurka's conduct can be measured. Therefore, I GRANT summary judgment for the defendant as to Cruz-Roldan's negligence claim based on Lopez's interview.
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.
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 back to the Superior Court of the District of Columbia.
