Cruz-Roldan v. Nagurka

UNITED STATES DIS'I`RICT COURT

FOR THE DISTRICT OF COLUMBIA

CLAUDIA PATRICIA )

CRUZ-ROLDAN, )

)

Plaintiff, )

)

v. ) Case No. 16-cv-1308 (RJL)

)

GREG NAGURKA, '

§ FILED

Defendant. § MAR 31 2017

C|ork. U.S. Dlstrlct & Bankruptcy

MEMORANDUM OPINION Courts for the D|strlctof Co|umb|a

(March 'S;, 2017) [Dkrs. #9, #12]

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 Superior Court With second degree cruelty to children and simple assault,

but ended up voluntarily dismissing the cases. CruZ-Roldan maintains her innocence and

claims the investigation and criminal cases vvent too far. She brings this action against

Greg Nagurka (“defendant” or “Nagurka”), Who Was the lead detective on the case for the

D.C. Metropolitan Police Department. She alleges several tort claims, brought under D.C.

law (Counts I-V and VII), as Well as several constitutional violations, brought under § 1983

(Count VI). Am. Compl. [Dkt. #5]. Nagurka moves for partial dismissal under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon Which relief can be

granted. Def.’s Mot. for Partial Dismissal of the Am. Compl. (“Def" s Mot.”) l [Dkt. #9].

Specifically, Nagurka moves to dismiss Cruz-Roldan’s tort and § 1983 claims that rely on

the prosecution (Count V and part of Count VI), her tort and § 1983 claims based on false

arrest (Count IV and the other part of Count VI), and her slander claim (Count VII),

Nagurka argues that the Complaint fails to allege the required elements for an injury

sustained as part of a criminal prosecution or for a prima facie case of slander. He next

argues that Cruz-Roldan has not alleged sufficient facts to sustain her false arrest claims.

For the reasons described herein, Nagurka’s motion for partial dismissal is GRANTED

with respect to the claims that rely on the prosecution (Count V and part of Count VI). The

motion is DENIED, however, with respect to the slander claim (Count VII) and the false

arrest claims (Count IV and the remaining part of Count VI).

BACKGROUND

This case arises out of Nagurka’s investigation into an incident of alleged child

abuse involving J.S., a young boy enrolled at Kiddie Academy, the D.C. daycare center

where plaintiff CruZ-Roldan worked. Am. Compl. 1 4. On May 18, 2015, bruises were

discovered on J.S.’s legs, arm, and back. Id. In conducting the investigation, Nagurka

obtained Kiddie Academy video footage from that day showing CruZ-Roldan patting a

crying J.S. on the back until he stopped crying. Id. Nagurka sent a two minute clip of that

video to a specialist at the Freddie Mac Foundation Child & Adolescent Protection Center,

who responded that “while [plaintiff] is patting [J.S.] quite vigorously, l don’t think this

clip shows enough to explain [J.S.’s] injuries.” Ia’.

Next, Nagurl<a called Cruz-Roldan and her co-worker, Mayra Lopez, into the police

station to give a statement Id. He interviewed Lopez first. Id. Initially, Lopez denied

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witnessing any abuse at Kiddie Academy. Id. Nagurka then informed Lopez that if she

did not tell the police what she knew, she could get herself in trouble, possibly lose her job,

and possibly go to jail where she would not be able to see her family. Ia’. Lopez, who was

crying by this time, then changed her story. She said that CruZ-Roldan had “pinched”

children on eight occasions over a four month period. Id. Nagurka then interviewed Cruz-

Roldan who denied any allegations of intentional abuse, saying “if she hurt any children it

had been unintentional.” ld. Nevertheless, Nagurka arrested CruZ-Roldan and told her she

would be charged with first degree cruelty to children. Id. On June 4, 2015, the

Government ultimately filed a one-count information charging Cruz-Roldan with

attempted second degree cruelty to children in D.C. Superior Court (2016-CMD-7619).

See Def.’s Mot., EX. l, at 5-8 [Dkt. #9-1].l

Nagurka’s further investigation gave rise to an additional charge against Cruz-

Roldan. Relying on a video from April 2015, Nagurka claimed that she had pinched

another child’s right cheek. Am. Compl. 1j 4. However, the video allegedly shows Cruz-

Roldan incidentally touching the child’s left cheek. Id. On July 21, 2015, the Government

filed an information against Cruz-Roldan in this second case, charging second degree

cruelty to children (2()15-CMD-9806). See Def.’s Mot., EX. l, at 1-4. In April 2016, the

Government filed a superseding information adding a second count of simple assault. Id.

' ln support of defendant’s Motion to Dismiss, the Court will take judicial notice of the dockets in Cruz-

Roldan’s criminal cases. See Covad Comm ’cs Co. v. BellAtlantic Corp., 407 F.3d l220, 1222 (D.C. Cir.

2005).

Gn July 23, 2015, Nagurka allegedly told the owner of Kiddie Academy, Milena

Mattingly, that CruZ-Roldan was guilty of child abuse. Am. Compl. 11 33. Mattingly gave

a press conference that same day in which she stated, “once we found she was guilty by

the investigators, we had to terminate her.” Id. at W 4. According to plaintiff, Nagurka’s

communication to Mattingly was the proximate cause of her firing. Id. at jj 36. The

communication also allegedly caused her name to be added to a registry that made it

difficult for her to get child care work and caused her great humiliation and emotional

distress. Ia’. at W 4, 36.

The trials in Cruz-Roldan’s criminal cases were originally set for November 2015.

ld. at jl 4. When the Government disclosed a large amount of evidence a week and a half

before trial, the court continued the trials, eventually setting them for May 2016. Id. About

a month before trial, the Government turned over to CruZ-Roldan’s defense attorney the

video footage of Nagurka’s interview with Lopez and also the email exchange with the

specialist who concluded “I don’t think this clip shows enough to explain [J.S.’s] injuries.”

Id. A few weeks later, about a week before trial, the Government turned over a report

indicating that Nagurka had visited Kiddie Academy the day before he had called Lopez

and CruZ-Roldan down to the station. Id. Gn this visit, Lopez and another employee both

apparently indicated that nothing inappropriate had happened on the day J.S.’s injuries

were discovered. Ia’.

Based on this and other alleged failures to turn over exculpatory evidence, Cruz-

Roldan’s defense counsel filed a motion to dismiss the charges against her on May 4, 2016.

Ia’. The Government dismissed both cases on May 6, 2016, entering a nolle prosequi for

all charges. la’.

CruZ-Roldan initially filed this lawsuit in D.C. Superior Court on June 2, 2016.

Defendant removed to federal court. Notice of Removal [Dkt. #1]; id. at Ex. A [Dkt. #l~

l]. Plaintiff amended her complaint on June 29, 2016. Am. Compl. [Dkt. #5]. Defendant

responded by filing a partial answer and this Motion for Partial Dismissal of the Amended

Complaint challenging the claims based on plaintiffs criminal prosecution, the slander

claim, and the false arrest claims [Dkt. #9]. Plaintiff opposed and also requested to further

amend her complaint by adding one paragraph that would allege Nagurka’s communication

to Mattingly was not privileged and, therefore, met the elements of slander. Pl.’s Mot. for

Leave to Am. the Compl. [Dkt. #12].

ANALYSIS

When deciding a motion to dismiss under Rule l2(b)(6), the Court must ascertain

whether the complaint contains “sufficient factual matter, accepted as true, to state a claim

to reliefthat is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (intemal

quotation marks and citations omitted). Although the Court must read the complaint’s

factual allegations in the light most favorable to the plaintiff, Bell Atlantz`c Co v. Twombly,

550 U.S. 544, 555 (2()07), the Court is not required to accept legal conclusions cast in the

form of factual assertions, Brownz'ng v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). For

the following reasons, l agree with defendant that plaintiffs criminal prosecutions are an

insufficient injury on which to base her tort and constitutional claims. l disagree with

defendant as to his arguments for dismissing the slander and false arrest claims.

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I. Plaintiff May Not Bring Claims Based on Her Criminal Prosecutions (Count

IV and Part of Count VI)

Plaintiff has three theories that she was injured in the course of the criminal

prosecutions against her. She has a tort claim for malicious prosecution (Count IV); a

constitutional claim that having to face an unnecessary criminal prosecution constituted a

clear Fifth Amendment violation (part of Count VI), see Pl.’s Opp’n 7 [Dkt. #13]; and a

constitutional claim that the Government’s failure to turn over exculpatory material during

trial prep constituted a clear Braa’y violation (part of Count VI), see ia’. at 8-9. None of

these claims survive defendant’s argument that Cruz-Roldan did not suffer an injury on

account of these allegations because the Government voluntarily dropped the criminal

prosecutions against her.

lt is well-settled in D.C. that the tort of malicious prosecution requires that the

underlying suit be terminated in plaintiffs favor. See, e.g., Piti v. Dist. of Columbia, 491

F.3d 494, 501 (D.C. Cir. 2007). Plaintiff also concedes that this requirement applies to the

Fifth Amendment claim that she unnecessarily faced a criminal prosecution. See Pl.’s

Opp’n 7. Because this element is part of plaintiffs prima facie case, it is her burden to

demonstrate that the termination was favorable. Accora’ Kenly v. Dist. of Columbia, 83 F.

Supp. 3d 20, 43 (D.D.C. 2015); Harris v. Disi. ofColumbia, 696 F. Supp. 2d 123, 134

(D.D.C. 2010). Unfortunately for the plaintiff, she faces an uphill battle when the case was

terminated, as it was here, by a nolle prosequi dismissal. Ia’. Although D.C. has not

squarely addressed how to evaluate a riolle prosequi dismissal, defendant submits that such

dismissals are not favorable terminations because they are “without prejudice” unless

otherwise stated, which means the prosecutor may bring the case again. As such, plaintiff

urges the Court to follow jurisprudence from other jurisdictions, which look in these

situations to the underlying reasons a prosecutor decided to dismiss the case. See, e.g.,

Murphy v. Lynn, 118 F.3d 93 8, 948 (2d Cir. 1997). Here, plaintiff at least alleges that the

reason the prosecutor dismissed the case was because of continuing Braaly violations and

the pending motion to dismiss on that basis.

Even if 1 adopt plaintiffs view of the law and inquire into the reasons the case was

dismissed with a nolle prosequi disposition, 1 still must hold that plaintiff has not alleged

facts that could plausibly meet her burden to show that the reason was “a lack of reasonable

grounds for the prosecution.” Murphy, 118 F.3d at 948 (2d Cir. 1997) (quoted at Pl.’s

Opp’n 13); see also Brown v. Carr, 503 A.2d 1241, 1245 (D.C. 1986) (if the dismissal is

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“on technical grounds” or is “for procedural reasons, it does not constitute favorable

termination). The mere filing of Bracly motions, and a corresponding motion to dismiss,

does not plausibly suggest that the Government dismissed because it viewed the plaintiff

as innocent or the case as unsupportable. Even reading into the fact that the Government

dismissed the case quickly after disclosing new material, it is at least equally likely that the

Government believed the court might dismiss the cases on the technical ground that they

should have turned the material over earlier. That possibility is just one among many that

plaintiff has failed to foreclose in her Complaint. Without some better indication of the

prosecutor’s reason for dismissing, the plaintiff has not plausibly alleged favorable

termination. Accora' Kenley, 83 F. Supp. 3d at 42.

Plaintiff s claim based on alleged Braa’y violations fares no better. Although Braa’y

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is well-settled constitutional law of the type that can defeat the qualified immunity that

Nagurka enjoys when facing § 1983 claims, plaintiff has not suffered any constitutional

injury from a Braa’y violation (assuming one occurred) because the point of Braa’y is to

protect a defendant’s rights at trial. See Sirickler v. Greene, 527 U.S. 263, 281 (1999)

(“[S]trictly speaking, there is never a real ‘Braa’y violation’ unless the nondisclosure was

so serious that there is a reasonable probability that the suppressed evidence would have

produced a different verdict.”). Plaintiff in effect asks me to extend the holding in Braa’y

to find a constitutional injury in her case, arguing that a failure to disclose exculpatory

evidence could cause a defendant to unwittingly plead guilty. But Cruz-Roldan did not

plead guilty in her criminal cases. And, in any event, such an extension of the law would

be a new holding that Nagurka could not be expected to anticipate As such, plaintiff

cannot sustain a claim for damages based on the Government’s failure to turn over Braa’y

material.

II. Plaintiff May Proceed with Her Slander Claim (Count VII)

In Count VII, plaintiff alleges that Nagurka slandered her when he told Mattingly

she was guilty of child abuse. Defendant asserts he is protected by the “common interest”

privilege and that the facts on the face of the Complaint establish that he is entitled to that

privilege. A defendant is immune from a claim of slander under the common interest

privilege when he speaks pursuant to “a duty to a person having a corresponding . . . duty,”

Bloa’getl v. Univ. Club, 930 A.2d 210, 234 (D.C. 2007), and the statement is made in order

to advance that “proper purpose.” Payne v. Clark, 25 A.3d 91'8, 926 (D.C. 2011) (quoting

Morsie v. Trussell, 467 A.2d 475, 477 (D.C. 1983)). Defendant points out that he was

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under such a duty to prevent further child abuse, which duty has even been codified at D.C.

Code § 4-1321.01. He asserts that the only plausible reason to tell Mattingly that Cruz-

Roldan was guilty was to fulfill that duty and help her prevent further child abuse as well.

But defendant is wrong that the Court can conclusively decide at this stage whether he

made the statement to Mattingly in order to advance that “proper purpose.” The thrust of

plaintiffs Complaint is that Nagurka essentially fabricated the case against Cruz-Roldan.

She supports this inference by alleging that Lopez’s accusation against CruZ-Roldan was

coerced and that no reasonable officer could have thought a video showing Cruz-Roldan

touching one cheek could support the charge that she was responsible for a mark on the

other cheek. If Nagurka did fabricate the case against Cruz-Roldan, a question of fact for

the jury, see Payne, 25 A.3d at 926, then he was not acting in good faith to warn Mattingly

about the potential for child abuse and does not qualify for the privilege. See also Bloa'gett,

930 A.2d at 220 (“good faith” a required element of the common interest privilege).

Plaintiff will not, however, be permitted to amend her Complaint to include a

paragraph claiming that Defendant Nagurka’s statement was not privileged. Besides it

being unnecessary to respond to the instant Motion to Dismiss, it is a purely legal allegation

that has no effect on the sufficiency of the Complaint. Plaintiffs Motion to Amend [Dkt.

#12] is, therefore, DENIED.

III. Plaintiff May Proceed with Her False Arrest Claims (Count IV and Part of

Count VI) .

Defendant argues that plaintiff does not state a claim for false arrest because the

Complaint alleges facts showing that Nagurka reasonably believed that CruZ-Roldan

committed the child abuse that he arrested her for. But, once again, CruZ-Roldan alleges

that Nagurka knew Lopez’s accusation was coerced (or at least was unreliable). She also

alleges that all the other evidence in the J.S. case pointed away from CruZ-Roldan. One

reasonable inference from these allegations would be that Nagurka fabricated the case

against CruZ-Roldan. Whether this is true is a question of fact that plaintiff must have a

chance to prove. Her false arrest claims therefore survive defendant’s motion to dismiss.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Partial Dismissal of the

Amended Complaint [Dkt. #9] is GRANTED IN PART and DENIED IN PART.

Claim V and the parts of Claim Vl based on plaintiffs criminal prosecution are

DISMISSED. All other claims will go forward. An appropriate order shall accompany

this Memorandum Opinion.

RICHARUON

United State ` trict Judge

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