Orellana v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

EVY B. ORELLANA

:

v. : Civil Action No. DKC 20-0845

:

UNITED STATES OF AMERICA, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights action is Defendants’ Motion to Dismiss (ECF No. 22). The

issues have been fully briefed, and the court now rules, no hearing

being deemed necessary. Local Rule 105.6. For the following

reasons, the motion to dismiss will be granted in part and denied

in part.

I. Background1

During the summer of 2018, Plaintiff, Evy B. Orellana, resided

with her then boyfriend, Eric Trinidad, and their infant child in

the basement of Mr. Trinidad’s family home in Riverdale, Maryland.

Plaintiff was pregnant at the time. Mr. Trinidad’s mother, Yolanda

Menendez, and younger sister resided upstairs. On July 3, 2018,

at approximately 2 AM, Deputy U.S. Marshals (“DUSMs”) Ryan Godec

and Tristan Martin (“Individual Defendants”) arrived at the

1 Unless otherwise noted, the facts outlined here are set

forth in the amended complaint and construed in the light most

favorable to Plaintiff.

residence to execute an arrest warrant issued for Mr. Trinidad for

misdemeanor assault. Both DUSM Godec and DUSM Martin are members

of the Capital Area Regional Fugitive Task Force (“CARFTF”).2 DUSM

Godec was accompanied by his tactical canine (“Dart”).

Ms. Menendez answered the door and spoke to the Individual

Defendants. She stated that Mr. Trinidad was currently asleep in

the basement with Plaintiff and their infant child, and that her

daughter (Mr. Trinidad’s sister) was asleep in a bedroom on the

main floor. After waking and detaining Ms. Menendez’s daughter,

Individual Defendants proceeded downstairs to the basement where

they encountered a locked door that partitioned the basement from

the staircase leading to the main floor of the home. They broke

down the locked door and without first providing a verbal warning,

DUSM Godec released Dart from his tether, allowing him to enter

the main living quarters of the basement. Dart quickly proceeded

to a back bedroom where Plaintiff and Mr. Trinidad were sleeping

with their child. The bedroom door was cracked or slightly open

allowing Dart to enter the room. Upon entering, Dart “viciously”

attacked Plaintiff, biting her upper left leg. Plaintiff and Mr.

Trinidad screamed for help and for the dog to be released. The

Individual Defendants then entered the bedroom, ordered Dart to

2 Plaintiff notes that the CARFTF states on its website that

its mission is to “locate and apprehend the most violent and

dangerous fugitives throughout the Washington D.C. metropolitan

area, Maryland, and Virginia.”

release Plaintiff, and called for an ambulance. Plaintiff was

transported to the hospital where she received 45 stitches in her

upper left leg.

Plaintiff still experiences physical pain from her injuries

and suffers from anxiety, depression, and severe emotional

distress as a result the psychological trauma of the event.

Plaintiff also suffered a miscarriage four months after the attack,

which she believes was the result of the extreme physical and

mental stress she endured following the incident. She has

undergone extensive psychological counseling and incurred

thousands of dollars in medical bills.

Plaintiff timely filed a claim for her injuries with the U.S.

Marshals Service as required by the Federal Tort Claims Act for

claims against the United States. The Department of Justice denied

Plaintiff’s claim on October 2, 2019. Plaintiff filed a complaint

in district court on March 31, 2020 against the Individual

Defendants and the United States (collectively, “Defendants”).

(ECF No. 1). Defendants moved to dismiss. (ECF No. 11). On

August 20, 2020, Plaintiff filed an amended complaint asserting

one Bivens claim against the Individual Defendants and five claims

under the Federal Tort Claims Act (“FTCA”) against the United

States. (ECF No. 12). On October 28, 2020, Defendants moved to

dismiss the amended complaint. (ECF No. 22). Plaintiff responded

in opposition on November 18, 2020, (ECF No. 25), and Defendants

replied on December 1, 2020. (ECF No. 26).

II. Standard of Review

A. Fed.R.Civ.P. 12(b)(1)

Motions to dismiss for lack of subject matter jurisdiction

are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the

burden of proving that subject matter jurisdiction properly exists

in the federal court. See Evans v. B.F. Perkins Co., a Div. of

Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In

a 12(b)(1) motion, the court “may consider evidence outside the

pleadings” to help determine whether it has jurisdiction over the

case before it. Richmond, Fredericksburg & Potomac R.R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991); see

also Evans, 166 F.3d at 647. The court should grant the 12(b)(1)

motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter of

law.” Richmond, 945 F.2d at 768.

B. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need

only satisfy the standard of Fed.R.Civ.P. 8(a), which requires a

“short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed.R.Civ.P. 8(a)(2). At this stage, all

well-pleaded allegations in a complaint must be considered as true,

Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual

allegations must be construed in the light most favorable to the

plaintiff, see Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993)). See also, Mays v. Sprinkle, -

-- F.3d ---, 2021 WL 1181273, *6 (4th Cir. March 30, 2021)(“[O]n a

motion to dismiss, we cannot rely on facts not found in the

complaint or draw inferences in the [defendant’s] favor.”) But

“[r]ule 8(a)(2) still requires a ‘showing,’ rather than a blanket

assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 556 n.3 (2007).

In evaluating the complaint, unsupported legal allegations

need not be accepted. Revene v. Charles Cty. Comm’rs, 882 F.2d

870, 873 (4th Cir. 1989). Legal conclusions couched as factual

allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), as are conclusory factual allegations devoid of any

reference to actual events. United Black Firefighters of Norfolk

v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-

pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged - but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal,

556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus,

“[d]etermining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id.

III. Analysis

The amended complaint alleges a Bivens3 claim against the

Individual Defendants (Count I) and the following torts against

the United States under the Federal Tort Claims Act: Battery (Count

II), False Imprisonment (Count III), Negligence (Count IV), Gross

Negligence (Count V), and Intentional Infliction of Emotional

Distress (“IIED”) (Count VI). (See ECF No. 12, at 8-16).

Defendants argue that the amended complaint must be dismissed

in its entirety because the court lacks subject matter jurisdiction

over Counts IV-VI because the United States has not waived its

sovereign immunity for constitutional torts or IIED claims, Counts

II-VI fail to state a claim because Plaintiff cannot establish

that the Individual Defendants acted with actual malice, and Counts

II and III fail because the Individual Defendants’ actions were

legally justified. (See ECF No. 22-1, at 14-28). Defendants also

argue that, because Plaintiff’s FTCA claims fail on their merits,

3 See Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 394–97 (1971). Under Bivens, a plaintiff

must allege that he or she was deprived of a constitutional right

by a person acting under color of federal authority. Goldstein v.

Moatz, 364 F.3d 205, 210 n.8 (4th Cir. 2004).

the FTCA’s judgment bar requires dismissal of her Bivens claim and

alternatively, that Individual Defendants are entitled to

qualified immunity. (See id., at 28-31).

A. Federal Tort Claims Act Claims Against the United States

The United States, and its officers, are presumed to be immune

from suit, unless they have expressly waived their immunity.

“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” Federal Deposit Insurance

Corp. v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank,

486 U.S. 549, 554 (1988); Federal Housing Administration v. Burr,

309 U.S. 242 (1940)). The United States and its officers are

liable under the FTCA only to the limited extent that the United

States has waived sovereign immunity. See 28 U.S.C. §§ 1346(b),

2674; see also Rich v. United States, 158 F.Supp.2d 619, 628 (D.Md.

2001). The FTCA provides a limited waiver of sovereign immunity

for claims against the United States for “acts or omissions of .

. . law enforcement officers of the United States Government, . .

. arising, on or after the date of the enactment of this proviso,

out of assault, battery, false imprisonment, false arrest, abuse

of process, or malicious prosecution.” 28 U.S.C. § 2680(h) (1974).

As sovereign immunity has not been waived under the FTCA, §

2680(h), for the torts of negligence (Count IV) or gross negligence

(Count V), those claims must be dismissed under Rule 12(b)(1) for

lack of subject matter jurisdiction.4

Plaintiff’s remaining tort claims, for which sovereign

immunity is waived, are governed by the law of Maryland, where the

alleged tortious acts occurred. See 28 U.S.C. §§ 1346(b); 2674.

Under Maryland statutory law, individual state government

employees are immunized from tort liability for acts or omissions

committed within the scope of their employment and made without

actual malice or gross negligence. See Md.Code Ann., Cts. & Jud.

Proc. § 5–522(b); Davis v. Muse, 51 Md.App. 93, 441 A.2d 1089,

1093 (1982)). Under Maryland law, “actual malice” is defined as

“conduct characterized by evil or wrongful motive, intent to

injure, knowing and deliberate wrongdoing, ill-will or fraud.”

Lee v. Cline, 863 A.2d 297, 311 (Md. 2004) (internal quotation

marks and citations omitted). “Malice is established by proof

4 Plaintiff’s claims for negligence and gross negligence are

claims for excessive use of force in effecting a seizure. Thus,

in reality, such claims assert constitutional torts under the

Fourth Amendment and are not merely common law torts as Plaintiff

labels them. Caselaw dictates that sovereign immunity has not

been waived for constitutional torts and therefore, the court lacks

subject matter jurisdiction over such claims. See Harris v. Unites

States, No. 3:10-cv-00027, 2010 WL 2733448, at *3 (E.D. Va. June

8, 2010) (“The United States Supreme Court has held that federal

constitutional tort claims are not cognizable under the FTCA.”)

(citing FDIC v. Meyer, 510 U.S. at 478); see also Reinbold v.

Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) (“[T]he United States

has not waived sovereign immunity in suits claiming constitutional

torts[.]”); Williams v. U.S., 242 F.3d 169, 175 (4th Cir. 2001)

(“[T]he U.S. simply has not rendered itself liable under [the FTCA]

for constitutional tort claims.”).

that the defendant-officer ‘intentionally performed an act without

legal justification or excuse, but with an evil or rancorous motive

influenced by hate, the purpose being to deliberately and willfully

injure the plaintiff.’” Rich, 158 F.Supp. 2d at 629.

Defendants argue that all of Plaintiff’s remaining claims

under the FTCA fail because she cannot establish that the

Individual Defendants acted with actual malice. (See ECF No. 22-

1, at 14-19). The court disagrees. Assuming all factual

allegations to be true and viewing them in the light most favorable

to Plaintiff, a factfinder, if given the opportunity, could well

conclude that the Individual Defendants were motivated by an

improper motive or had an affirmative intent to bring harm to

Plaintiff. According to Plaintiff’s version of events,5 the

Individual Defendants had direct knowledge that Plaintiff and her

infant child were asleep in the basement bedroom of the residence

and yet, without providing any warning, intentionally released an

attack dog which, in Defendants words, “was trained to [] bit[e]

the first person he encountered[.]” (Id., at 5). Defendants’

argument that they were motivated by a desire to “locate” Mr.

Trinidad rather than by any ill-will ignores Plaintiff’s version

of events. Mr. Trinidad’s mother had already advised the

5 Plaintiff’s and Defendants’ versions of events are

diametrically opposed. As emphasized in Mays, 2021 WL 1181273,

Defendants’ version is irrelevant at this stage.

Individual Defendants of his exact location: asleep in the

basement, along with his girlfriend and child. Moreover, the DUSMs

had already “cleared” the rest of the house and confirmed that Mr.

Trinidad was not in any other location. (See id., at 6). It would

not be unreasonable to infer from these facts that the Individual

Defendants were motivated by an extreme and overzealous intent to

injure Plaintiff. Thus, Plaintiff has alleged facts sufficient to

establish that the Individual Defendants acted with actual malice.

Defendants also argue that Plaintiff’s Battery (Count II) and

False Imprisonment (Count III) claims should be dismissed because

the Individual Defendants’ actions were legally justified as they

“feared, given their work and the individuals they were tasked

with apprehending, that Trinidad could be planning an ambush-style

attack.” (Id., at 24). Again, that argument depends on

considering facts not contained in the complaint and drawing

inferences in favor of Defendants, neither of which is appropriate.

“Dismissal under Rule 12(b)(6) is appropriate only if plaintiff

fails to state a claim that is plausible on its face.” Owens v.

Balt. City State’s Atty’s Office, 767 F.3d 379, 395–96 (4th Cir.

2014) (internal quotation marks and citations omitted). As

discussed above, Ms. Orellana has “provided sufficient detail

about h[er] claim to show that [s]he has a more-than-conceivable

chance of success on the merits.” Twombly, 550 U.S. at 570.

Accordingly, dismissal on the ground that Individual Defendants’

actions were legally justified is inappropriate. Lacking any

meritorious grounds for dismissal, Counts II and III will be

allowed to proceed.

As to Plaintiff’s final claim under the FTCA, Count VI,

Defendants argue that Plaintiff fails to allege the first and

second elements necessary to state a claim under Maryland law for

IIED.6

To recover for IIED under Maryland law, a

plaintiff must show that: (1) the defendant’s

conduct was intentional or reckless; (2) the

conduct was extreme or outrageous; (3) there

is a causal connection between the wrongful

conduct and the emotional distress; and (4)

the emotional distress is severe. [Harris v.

Jones, 281 Md. 560, 566 (Md. 1977)]; see also

Interphase Garment Solutions, LLC v. Fox

Television Stations, Inc., 566 F.Supp.2d 460,

466 (D.Md. 2008) (citing Hamilton v. Ford

Motor Credit Co., 66 Md.App. 46, 58, 502 A.2d

1057 (1986)). All four elements must be

established, and the liability for the tort

should be imposed sparingly, “its balm

6 Defendants also argue that the court lacks subject matter

jurisdiction over Plaintiff’s claim for IIED because the United

States has not waived its sovereign immunity for IIED claims. (See

ECF No. 22-1, at 20-21). In their reply, however, Defendants

concede that there is a conflict in this district over whether the

FTCA waives sovereign immunity for IIED claims. While Tinch v.

U.S., 189 F.Supp 2d. 313, 317 (D.Md. 2002), and Harms v. U.S., 972

F.2d 339 (4th Cir. 1992), both state that the FTCA does not waive

sovereign immunity for IIED claims, a more recent case out of this

district (albeit unreported) expressly states that IIED claims are

permissible under the FTCA. See Johnson v. United States Dep’t of

Just., No. PJM 14-4008, 2016 WL 4593467, at *8 (D.Md. Sept. 2,

2016) (citing Truman v. U.S., 26 F.3d 592, 595 (5th Cir. 1994)).

Because the caselaw lacks clarity on this precise issue and because

Plaintiff will be permitted to move forward in pressing her claims

in Counts II and III, the court will allow her to proceed with her

IIED claim in Count VI as well.

reserved for those wounds that are truly

severe and incapable of healing themselves.”

Caldor, Inc. v. Bowden, 330 Md. 632, 642, 625

A.2d 959 (1993) (quoting Figueiredo–Torres v.

Nickel, 321 Md. 642, 653, 584 A.2d 69 (1991)).

Brengle v. Greenbelt Homes, Inc., 804 F. Supp. 2d 447, 452 (D.Md.

2011). As to the first element, Defendants argue that Plaintiff

alleges only negligent conduct, rather than intentional or

reckless conduct. (See ECF No. 22-1, at 22) (“At most, Plaintiff

alleges that Individual Defendants negligently failed to announce

Dart’s presence so that Plaintiff, who was behind a sealed wall,

could hear. But ‘[m]ere negligence does not satisfy this element

of the tort.’”). As to the second element, Defendants argue that

Plaintiff does not allege extreme and outrageous conduct. (See

id., at 23-25). Defendants are wrong. Plaintiff’s allegations

sufficiently allege that the Individual Defendants’ conduct was

both intentional/reckless and extreme and outrageous. As noted

above, the amended complaint alleges that the Individual

Defendants knew, before entering the basement, that Plaintiff and

her infant child were asleep in this area. By intentionally

releasing Dart from his tether and allowing him to enter the

basement unrestrained, the Individual Defendants intended that the

dog find and bite a person. Such conduct, if true, certainly

“go[es] beyond all possible bounds of decency” and can “be regarded

as atrocious, and utterly intolerable in a civilized community.”

Kohler v. Shenasky, 914 F. Supp. 1206, 1212 (D.Md. 1995).

Defendants do not challenge Plaintiff’s showing as to the third

and fourth elements required to state a claim for IIED. As to

these elements, the allegations in the complaint are thin, at best,

but sufficient, given the requirements at this stage that the

complaint be reviewed in the light most favorable to Plaintiff.

Accordingly, Counts II, III, and VI survive while Counts IV and V

will be dismissed for lack of subject matter jurisdiction.

B. Bivens7 Action Against the Deputy U.S. Marshals in their

Individual Capacities

Defendants first argue that the FTCA’s judgment bar requires

dismissal of Plaintiff’s Bivens claim in Count I.8 (See ECF No.

22-1, at 25). Given that Plaintiff’s claims under the FTCA in

Counts II, III, and VI will proceed, however, this argument fails.

Defendants alternatively argue that the Individual Defendants are

entitled to qualified immunity because Plaintiff cannot establish

a violation of her Fourth Amendment rights; and even if she could,

any such right was not “clearly established” at the time of these

7 The Supreme Court sharply limited the likelihood of

obtaining a Bivens remedy in Hernandez v. Mesa, 140 S.Ct. 735

(2020). In that case, the Court declined to extend a Bivens action

remedy to a cross-border shooting situation, holding that the

petitioner’s claim involved a “new context” where special factors

counseled hesitation about extending the availability of the

remedy. Id., at 749-50. While Defendants do not mention

Hernandez, Plaintiff’s Bivens claim is not significantly different

from previous Bivens claims and does not arise in a “new context.”

Thus, it does not appear that Plaintiff’s claim is implicated by

the recent ruling in Hernandez.

8 See Brownback v. King, 141 S. Ct. 740 (2021).

events. (See ECF No. 22-1, at 29-31). Once again, the court

disagrees and finds the present case to be one of the rare

instances in which the plaintiff has stated a claim sufficient to

overcome qualified immunity at this stage.

The doctrine of qualified immunity

protects government officials “from liability

for civil damages insofar as their conduct

does not violate clearly established statutory

or constitutional rights of which a reasonable

person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 [] (1982).

Qualified immunity balances two important

interests—the need to hold public officials

accountable when they exercise power

irresponsibly and the need to shield officials

from harassment, distraction, and liability

when they perform their duties reasonably.

Pearson v. Callahan, 555 U.S. 223, 231 (2009). In evaluating

whether dismissal is warranted on the ground of qualified immunity,

courts apply a two-part test. The court must determine whether

the facts alleged, viewed in the light most favorable to the

plaintiff, establish that the official’s conduct violated a

constitutional right. Id., at 232. The court must also “decide

whether the right at issue was ‘clearly established’ at the time

of the defendant’s alleged misconduct. [] Qualified immunity is

applicable unless the official’s conduct violated a clearly

established constitutional right.” Id. (citing Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “While a decision directly

on point is not required to put officials on notice of a ‘clearly

established’ right, ‘[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” Id. Courts are

“permitted to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Id., at 236. The burden is on the Plaintiff to

prove that the alleged conduct violated the law, while Defendant[s]

must prove that the right was not clearly established. Henry v.

Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007). Finally, the court

should make a ruling on the qualified immunity issue “early in the

proceedings so that the costs and expenses of trial are avoided

where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194,

200 (2001).

“All claims that law enforcement officers have used

excessive force . . . should be analyzed under the Fourth Amendment

and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S.

386, 395 (1989). This “include[es] claims that police canines

were improperly deployed.” Melgar ex rel. Melgar v. Green, 593

F.3d 348, 355 (2010) (citing Vathekan v. Prince George’s County,

154 F.3d 173, 178 (1998)).

The reasonableness of a particular use of

force must be judged from the perspective of

a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight . . . . The

calculus of reasonableness must embody

allowance for the fact that police officers

are often required to make split second

judgments-in circumstances that are tense,

uncertain, and rapidly evolving-about the

amount of force that is necessary in a

particular situation.

Graham, 490 U.S. at 396-97. Defendants do not dispute that a

seizure of Plaintiff occurred, rather, they merely contend that

such seizure was objectively reasonable under the circumstances

because the Individual Defendants “were involved in a rapidly

evolving search for a wanted criminal who was known to be in the

subject residence and was suspected to be in sealed-off portion of

the house.” (ECF No. 22-1, at 31).

Contrary to Defendants’ assertions, the allegations in

Plaintiff’s amended complaint establish a plausible violation of

her Fourth Amendment right to be free from unreasonable seizures.

First, the Individual Defendants were made aware that Plaintiff

and her infant child were asleep in the basement with Mr. Trinidad.

Second, the Individual Defendants were aware that “a police dog

cannot discriminate between a criminal and an innocent person[,]”

Vathekan, 154 F.3d at 178, and that, once released, the dog would

unquestionably “bit[e] the first person he encountered[.]” (Id.,

at 5). Third, the Individual Defendants faced no immediate threat

because they knew precisely where the suspect was located within

the house, that he was wanted only for a minor misdemeanor offense,

and that he lacked any significant criminal history. Finally, the

Individual Defendants themselves seem to concede that the use of

force was excessive in their admission that “[o]ften times the

presence of a K9 will deter criminals through intimidation alone.

Fugitives will often times comply after knowing a K9 is on scene-

particularly if they were hiding before.” (ECF Nos. 22-2, at 3 &

22-3, at 4). Despite all of these facts, the Individual Defendants

intentionally released a trained police attack dog into the room

where they knew Plaintiff and her infant child were present without

any verbal warning or time to surrender. As Defendants themselves

note, “the Fourth Amendment is violated when an officer who faces

no immediate threat deploys a police dog without prior warning.”

(ECF No. 26, at 9) (citing Est. of Rodgers ex rel. Rodgers v.

Smith, 188 F. App’x 175, 182 (4th Cir. 2006)). Based on the

foregoing facts, one could conclude that the Individual Defendants

acted unreasonably with excessive use of force. Accordingly,

Plaintiff has alleged sufficient facts for a jury to find that a

constitutional violation has occurred.

Having concluded that the facts alleged could make out a

violation of Plaintiff’s Fourth Amendment rights, the court next

asks whether this right was clearly established. It was. At the

time of Plaintiff’s seizure, it was clearly established that “a

warning is necessary before releasing a [police] dog.” Melgar,

593 F. 3d. at 358 (citing Vathekan, 154 F.3d at 179 and Kopf v.

Wing, 942 F.2d 265, 268 (1991)). In fact, “it [has been] clearly

established [since] 1995 that failing to give a verbal warning

before deploying a police dog to seize someone is objectively

unreasonable and a violation of the Fourth Amendment.” Vathekan,

154 F.3d at 179; see also Kopf, 942 F.2d at 268 (holding that

improper deployment of a police dog that attacks the target

constitutes excessive force). Accordingly, the Individual

Defendants are not entitled to qualified immunity and Plaintiff’s

Bivens claim will also survive dismissal.

IV. Conclusion

For the foregoing reasons, the motion to dismiss filed by

Defendants will be granted as to Counts IV and V and denied as to

Counts I, II, III, and VI. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge