STREET v. SANTIAGO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LOMMIA FAYE STREET, )

)

Plaintiff, )

)

v. ) 1:21-cv-941

)

JOHN SANTIAGO, )

TRAVIS J. NELLIS, and )

UNITED STATES OF AMERICA, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Plaintiff brings this action against the United States and

two security officers with the United States Department of

Veteran’s Affairs assigned to the VA Hospital in Kernersville,

North Carolina. (Doc. 1 at 2.) Plaintiff alleges that on June

12, 2019, while at the VA Hospital for medical treatment, she

was wrongfully detained, assaulted, and prosecuted by two

security officers, John Santiago, (“Santiago”) and Travis Nellis

(“Nellis”). (Id. at 3-9.) Although Santiago, Nellis, and the

United States are named defendants in the complaint, the United

States has been substituted as the sole defendant for the

individual defendants pursuant to 28 U.S.C. § 2679. (Docs. 17,

23.)

The United States (“Defendant”) moves to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

(Doc. 20.) While this court agrees with Defendant that the

videos appear to contradict many of Plaintiff’s allegations, the

record at present does not allow this court to find whether the

initial detention of Plaintiff was based upon reasonable

suspicion. Because that initial detention is a critical factor

in determining the plausibility of Plaintiff’s claims, this

court is bound to accept as true Plaintiff’s allegation that

“Santiago had no reasonable suspicion that Street had committed,

or was about to commit, any crime when he seized Street.” (Doc.

1 at 7.) Defendant’s motion will be denied as to the claims

alleging assault, false imprisonment, and an unconstitutional

seizure under the Fourth Amendment. Defendant’s motion will be

granted on the malicious prosecution claim.

I. FACTUAL AND PROCEDURAL HISTORY

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). The facts, in

summary and taken in the light most favorable to Plaintiff, are

as follows.

On June 12, 2019, Plaintiff went to the VA Hospital in

Kernersville, North Carolina for a medical appointment. (Compl.

(Doc. 1) at 3.)1 Plaintiff contends that while waiting to check

in at a kiosk, another patient cut in line in front of her.

(Id.) Plaintiff alleges that she told the patient it was her

turn, removed the patient’s card from the kiosk and handed it to

the patient. (Id.) A brief confrontation ensued. (Id. at 3–4.) A

“volunteer receptionist reported the kiosk event to Santiago,

who spoke briefly with Street,” after Plaintiff’s confrontation

with the unidentified patient. (Id. at 4.)

As Plaintiff prepared to leave the VA Hospital, she was

stopped by Santiago. (Id.) According to Plaintiff, “Santiago

blocked her way, and initiated a physical confrontation, which

involved Santiago throwing Street to the floor, and restraining

her with handcuffs.” (Id.)

Plaintiff asserts five claims in her complaint: (1) Assault

and Battery, (2) False Imprisonment, (3) Malicious Prosecution,

(4) an unconstitutional seizure and use of force claim under the

Fourth Amendment, and (5) a Bivens claim. (Id. at 6–9.) However,

the Bivens claim appears to be duplicative of the Fourth

Amendment claim. The Supreme Court created a federal cause of

action against federal officers for their violations of the

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

Fourth Amendment in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). This

court is not aware of a separate state cause of action for a

violation of the Fourth Amendment. (See Br. in Supp. of Defs.’

Mot. to Dismiss (Doc. 22) at 11–12.)

In addition to the allegations contained in the complaint,

Plaintiff filed videos from the Kernersville VA, which show the

interactions between Plaintiff and the unknown patient and

Plaintiff and Santiago. (Doc. 1–3.) Plaintiff includes the

videos as part of her allegations and contends that the video

recordings “show clearly that Plaintiff did not assault the man

who cut in front of her . . . and show that Santiago detained

her, blocked her passage, and violently assaulted her . . .”

(Compl. (Doc. 1) at 6.) Defendant also filed the same videos in

support of its motion to dismiss, although Defendant’s videos

were rotated and enlarged. (Doc. 21.) While Plaintiff mentions

that Defendant’s videos are “altered,” (Br. in Opp’n to Mot. to

Dismiss (Doc. 25) at 1), neither party disputes the relevance or

authenticity of the videos. Defendant argues, and Plaintiff does

not dispute, that video incorporated into a complaint may be

considered for purposes of deciding a motion to dismiss. (Br. in

Supp. of Defs.’ Mot. to Dismiss (Doc. 22) at 7.)

As the Fourth Circuit has explained, “[w]e generally do not

consider extrinsic evidence when evaluating the sufficiency of a

complaint. However, we may properly consider documents attached

to a complaint or motion to dismiss ‘so long as they are

integral to the complaint and authentic.’” Anand v. Ocwen Loan

Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014) (quoting

Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009)). Consistent with that holding, a panel of the Fourth

Circuit held that a video, integral to a complaint, may properly

be viewed by the court in ruling on a motion to dismiss pursuant

to Rule 12(b)(6). Zsogray v. Cnty. Comm. of Lewis Cnty., 709 F.

App’x 178, 179 (4th Cir. 2018). This court concludes, under the

circumstances present here, that the videos may be considered in

the analysis of the facts that have been plausibly alleged.

After careful review of the videos2 submitted by both

parties, this court finds that the videos appear to contradict a

number of allegations in the complaint even when viewed in the

light most favorable to the non-moving party. For purposes of

the pending motion only, this court finds that Plaintiff’s

interaction with the unknown patient was more aggressive than

portrayed in the complaint. It does not appear to this court

2 The videos do not have audio. Therefore, at least for

purposes of this motion, there is no audio recording of the

relevant activity.

that Plaintiff simply handed the card back, as Plaintiff

alleges. (See Compl. (Doc. 1) at 3.) Furthermore, it appears

Plaintiff escalated the confrontation with Santiago into a

physical confrontation by trying to walk around Santiago, push

past Santiago with her body in the hallway, and then push

Santiago with her body and arms in the vestibule. Plaintiff

alleges that Santiago initiated a physical confrontation, (id.

at 4); after watching the video, this court disagrees.

Plaintiff alleges that Santiago threw Plaintiff to the

floor. (Id.) The reason for Plaintiff’s fall to the floor is

perhaps subject to some interpretation. However, in this court’s

opinion, it appears most reasonable to conclude that Plaintiff

escalated the physical confrontation in the vestibule by pushing

Santiago with her hands, arms, and body. Plaintiff appears to

have fallen as Santiago stood his ground.

Nevertheless, the court does not find it necessary to

resolve these factual issues. Neither the complaint nor the

videos fully explain what Santiago knew when he initially

detained Plaintiff. Drawing all reasonable inferences in favor

of Plaintiff, Plaintiff’s allegations that Santiago “had no

reasonable suspicion” and “unreasonably seized Street,” (id. at

8), constitute an issue of fact that cannot be resolved at this

stage of the proceedings.

II. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). To be facially plausible, a claim

must “plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable” and must

demonstrate “more than a sheer possibility that a defendant has

acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). When

ruling on a motion to dismiss, a court must accept the

complaint’s factual allegations as true. Id. Further, “the

complaint, including all reasonable inferences therefrom, [is]

liberally construed in the plaintiff’s favor.” Estate of

Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.

2d 636, 646 (M.D.N.C. 2004) (citation omitted).

Nevertheless, sufficient factual allegations must “raise a

right to relief above the speculative level” so as to “nudge[]

the[] claims across the line from conceivable to plausible.”

Twombly, 500 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. A

court cannot “ignore a clear failure in the pleadings to allege

any facts which set forth a claim.” Estate of Williams-Moore,

335 F. Supp. 2d at 646. Consequently, even given the deferential

standard allocated to pleadings at the motion to dismiss stage,

a court will not accept mere legal conclusions as true and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, [will] not suffice.”

Iqbal, 556 U.S. at 678.

III. ANALYSIS

A. Motion to Dismiss Claims Against Santiago

Plaintiff alleges three state law claims — assault, false

imprisonment, malicious prosecution — and one federal claim — an

unconstitutional seizure under the Fourth Amendment — as to

Santiago. Each of Plaintiff’s claims is predicated upon an

initial unlawful detention by Santiago. In other words, if

Santiago was justified in detaining Plaintiff, then the videos

demonstrate, nearly conclusively, that Santiago’s interaction

with Plaintiff was justified and Plaintiff’s claims are subject

to dismissal. On the other hand, if Santiago seized Plaintiff

without justification, then the subsequent activity could

plausibly support Plaintiff’s claims.

Plaintiff’s First Claim for Relief is a claim of assault

and battery. (Compl. (Doc. 1) at 6.) “Under the common law, a

law enforcement officer has the right, in making an arrest and

securing control of an offender, to use only such force as may

be reasonably necessary to overcome any resistance and properly

discharge his duties.” Myrick v. Cooley, 91 N.C. App. 209, 215,

371 S.E.2d 492, 496 (1988) (citing State v. Fain, 229 N.C. 644,

50 S.E.2d 904 (1948)). Similarly, during a Terry stop, under

North Carolina law, “police can use ‘measures of force such as

placing handcuffs on suspects, placing the suspect in the back

of police cruisers, drawing weapons, and other forms

of force typically used during an arrest.’” State v. Thorpe, 232

N.C. App. 468, 478, 754 S.E.2d 213, 221 (2014) (citing State v.

Campbell, 188 N.C. App. 701, 709, 656 S.E.2d 721, 727 (2008)).

After reviewing the videos, this court finds that Santiago

did not commit an assault, or use unreasonable force, if he

lawfully detained Plaintiff at the start of the confrontation.

Under those circumstances, the motion to dismiss the First Claim

for Relief should be granted. On the other hand, if Santiago’s

detention of Plaintiff was not justified, then Plaintiff has

plausibly alleged that Santiago’s actions in physically blocking

Plaintiff’s egress from the VA Hospital could constitute an

assault.

The elements of a claim of false imprisonment also include

an element relating to the justification of the detention

alleged to constitute false imprisonment. “False imprisonment is

the illegal restraint of the person of any one against his

will.” Hales v. McCrory-McLellan Corp., 260 N.C. 568, 570, 133

S.E.2d 225, 227 (1963). “The elements of false imprisonment

include: ‘(1) the illegal restraint of plaintiff by defendant,

(2) by force or implied threat of force, and (3) against the

plaintiff’s will.’” Wilkerson v. Duke Univ., 229 N.C. App. 670,

674, 748 S.E.2d 154, 158 (2013) (citing Rousselo v. Starling,

128 N.C. App. 439, 449, 495 S.E.2d 725, 732 (1998)). Because

false imprisonment requires proof that any restraint was

illegal, if Santiago had lawful authority to detain Plaintiff,

then her false imprisonment claim is without merit and subject

to dismissal.

The elements of Plaintiff’s Third Claim, malicious

prosecution, require Plaintiff to establish four elements:

(1) the defendant initiated the earlier proceeding;

(2) malice on the part of the defendant in doing so;

(3) lack of probable cause for the initiation of the

earlier proceeding; and (4) termination of the earlier

proceeding in favor of the plaintiff. The presence of

probable cause necessarily defeats plaintiff’s claim.

Adams v. City of Raleigh, 245 N.C. App. 330, 335, 782 S.E.2d

108, 112–13 (2016) (internal citations omitted) (cleaned up).

Plaintiff alleges two offenses as “the earlier proceeding,” that

is, Disorderly Conduct and Delaying, Obstructing, and Resisting

an Officer. (Compl. (Doc. 1) at 7.) If Santiago had either

reasonable suspicion or probable cause to detain Plaintiff in

the first instance, then there is probable cause to believe

Plaintiff’s response to the detention was disorderly and

obstructive.

Plaintiff’s Fourth and Fifth Claims for Relief allege

violations of the Fourth Amendment. “In 1971, the Supreme Court

announced a federal damages remedy to redress violations of the

fourth amendment by federal law enforcement officers.” Norton v.

United States, 581 F.2d 390, 393 (4th Cir. 1978). “As in other

Fourth Amendment contexts, however, the ‘reasonableness’ inquiry

in an excessive force case is an objective one: the question is

whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham v.

Connor, 490 U.S. 386, 397 (1989).

As with the other three claims, if Santiago’s detention of

Plaintiff was justified, then the videos establish that any

claims based upon an alleged violation of the Fourth Amendment

are subject to dismissal. The Fourth Circuit has recognized

“that drawing weapons, handcuffing a suspect, placing a suspect

in a patrol car for questioning, or using or threatening to use

force does not necessarily elevate a lawful stop into a

custodial arrest for Miranda purposes.” United States v. Leshuk,

65 F.3d 1105, 1109–10 (4th Cir. 1995).

Turning to the motion to dismiss filed in this case, the

Government argues that “the facts show that the initial

detention of Plaintiff, for less than 2 minutes, was not an

unreasonable seizure of Plaintiff.” (Br. in Supp. of Defs.’ Mot.

to Dismiss (Doc. 22) at 13.) The Government argues that

Office[r] Santiago had a reasonable suspicion based on

“specific and articulable facts which, taken together

with rational inferences from those facts, reasonably

warrant [the] intrusion.” He was fulfilling his duty

to investigate the matter when he approached Plaintiff

and detained her initially for less than 2 minutes.

(Id. at 14 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968).)

Under well-established doctrine, a police officer may,

consistent with the Fourth Amendment, conduct a brief

investigatory stop — known as a “Terry stop” —

predicated on reasonable, articulable suspicion that

“criminal activity may be afoot.” Terry v. Ohio, 392

U.S. 1, 30 (1968); see Illinois v. Wardlow, 528 U.S.

119, 123 (2000). Reasonable suspicion is “a less

demanding standard than probable cause” but requires

“at least a minimal level of objective justification

for making the stop.” Wardlow, 528 U.S. at 123.

United States v. Mitchell, 963 F.3d 385, 390 (4th Cir. 2020)

(cleaned up). “The principal components of a determination of

reasonable suspicion . . . will be the events which occurred

leading up to the stop or search, and then the decision whether

these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable

suspicion. . . .” Ornelas v. United States, 517 U.S. 690, 696

(1996). Therefore, to determine whether Santiago had a

reasonable suspicion justifying a brief detention of Plaintiff,

the historical facts leading up to the detention must be

determined.

The Defendant’s argument that Santiago had a reasonable

suspicion is founded upon facts purportedly known to Santiago at

the time of the detention. (See Br. in Supp. of Defs.’ Mot. to

Dismiss (Doc. 22) at 13-14.) However, this court is not able to

determine from the record what historical facts were known to

Santiago at the time of the detention. Consistent with the facts

argued by the Government, Plaintiff alleges that a “volunteer

receptionist reported the kiosk event to Santiago.” (Compl.

(Doc. 1) at 4.) However, contrary to the Government’s argument,

there is no evidence as to what the receptionist may have told

Santiago. Similarly, while the Government argues that Santiago

knew Plaintiff was waiting in the lobby for an escort, (Br. in

Supp. of Defs.’ Mot. to Dismiss (Doc. 22) at 14), Plaintiff only

alleges that a “physician made arrangements for a uniformed

escort to meet Street in the lobby to escort her to her car,”

(Compl. (Doc. 1) at 4). The record does not disclose whether

that information was communicated to Santiago or any additional

facts Santiago may have known before detaining Plaintiff.3

This court finds that Defendant’s motion to dismiss should

be denied as to Plaintiff’s claims of assault, false

imprisonment, and unconstitutional seizure against Santiago.

B. Motion to Dismiss Claims Against Nellis

Defendant argues that the allegations against Nellis are

insufficient to state a Bivens claim and that Nellis should be

dismissed from this action. (Br. in Supp. of Defs.’ Mot. to

Dismiss (Doc. 22) at 20.) Nellis is named as a defendant in

Plaintiff’s Second, Third, Fourth, and Fifth Claims for Relief.

(Compl. (Doc. 1) at 6-9.) The facts alleged in the complaint as

to Nellis are very limited. However, Plaintiff alleges that

“Santiago and Nellis arrested Street and removed her to a room

on the third floor,” “Santiago and Nellis charged Street with

Resisting and Obstructing an Officer,” “Santiago and Nellis

intentionally detained Street against her will,” and “Santiago

and Nellis caused criminal charges to be brought against”

Plaintiff. (Id. at 5–7.) While the allegations as to Nellis are

3 Plaintiff attached her administrative claim to the

complaint. (Doc. 1–1.) Within that file are Santiago and Nellis’

reports. (See id. at 7, 22–44.) Because the parties have not

addressed these reports, this court declines to consider those

facts in reaching a decision. This court will simply note that

Santiago’s report, as submitted by Plaintiff, describes a

different set of facts from those alleged by Plaintiff.

vague and loosely drafted, Plaintiff has plausibly alleged

detention and criminal charges. The specific role Nellis may

have had in the relevant events will have to be determined

following discovery.

C. Motion to Dismiss the Malicious Prosecution Claim

Defendant argues that the discretionary function exception

to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b),

bars Plaintiff’s Third Claim for Relief, a malicious prosecution

claim. (Br. in Supp. of Defs.’ Mot. to Dismiss (Doc. 22) at 20.)

Relying in part upon Medina v. United States, 259 F.3d 220 (4th

Cir. 2001), Defendant explains persuasively and at length why

the malicious prosecution claim should be dismissed. (Id. at 20-

22.) Plaintiff asks this court not to dismiss the malicious

prosecution claim at this time and instead permit discovery so

she may determine whether the function Santiago exercised “was

based on considerations of public policy.” (Br. in Opp’n to Mot.

to Dismiss (Doc. 25) at 12.) This court finds that further

discovery on the issue is unnecessary and will grant Defendant’s

motion to dismiss Plaintiff’s malicious prosecution claim.

As a sovereign, the United States and its agencies are

immune from suit absent a waiver of that immunity. F.D.I.C. v.

Meyer, 510 U.S. 471, 475 (1994). A plaintiff bears the burden of

demonstrating a waiver of that immunity and that an exception to

the waiver does not apply. See Welch v. United States, 409 F.3d

646, 651 (4th Cir. 2005); see also Williams v. United States, 50

F.3d 299, 304 (4th Cir. 1995) (“[T]he party who sues the United

States bears the burden of pointing to an unequivocal waiver of

immunity.”) (cleaned up). If a plaintiff fails to meet that

burden, then the court lacks subject matter jurisdiction and

must dismiss the suit. See Welch, 409 F.3d at 649, 651.

The FTCA provides “a limited congressional waiver of

sovereign immunity for injury or loss caused by the negligent or

wrongful act of a Government employee acting within the scope of

his or her employment.” Medina, 259 F.3d at 223. Accordingly,

Congress has carved out numerous exceptions from its general

waiver of sovereign immunity. The discretionary function

exception provides:

Any claim based upon an act or omission of an employee

of the Government, exercising due care, in the

execution of a statute or regulation, whether or not

such statute or regulation be valid, or based upon the

exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part

of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). Courts use a two-prong test to determine

whether the discretionary function exception applies: (1) “the

challenged conduct must ‘be the product of judgment or

choice,’ i.e., the exception does not apply when the employee is

merely following ‘a federal statute, regulation, or policy

[that] specifically prescribes a course of action;’” and (2)

“the challenged conduct must be ‘based on considerations of

public policy.’” Medina, 259 F.3d at 226 (citing Berkovitz v.

United States, 486 U.S. 531, 536–37 (1988)). The elements of

this test are interrelated; “if a government employee has

discretion under the first [discretionary function exception]

prong, . . . it ‘must be presumed’ that his acts ‘are grounded

in policy when exercising that discretion.’” Blanco Ayala v.

United States, 386 F. Supp. 3d 635, 642 (E.D. Va. 2019)

(citations omitted).

“[T]he investigation of (potential) crimes is a discretion-

laden subject.” Blankenship v. United States, No. 20-1642, 2022

WL 1768858, at *3 (4th Cir. June 1, 2022). To that end, the

Fourth Circuit has held that the decision to prosecute is the

product of judgment or choice. See id. (holding the

discretionary function exception applied to a malicious

prosecution claim against VA police officers); see also Medina,

259 F.3d, 226–29 (holding the discretionary function exception

applied to a malicious prosecution claim against Immigration and

Naturalization Service agents for arresting and instituting

deportation proceedings against the plaintiff); Burgess v.

Watson, No. 1:12CV810, 2014 WL 4540256, at *5 (M.D.N.C. Sept.

11, 2014) (holding the discretionary function exception applied

to the plaintiff’s claim of malicious prosecution against an ATF

agent).

In Blankenship, the Fourth Circuit held that two VA police

officers were exercising their judgment when they arrested and

prosecuted the plaintiff for theft. 2022 WL 1768858, at *3. In

accord with that holding, this court finds that Santiago and

Nellis’ decision to charge Plaintiff with Disorderly Conduct and

Delaying, Obstructing, and Resisting an Officer was “the product

of judgment or choice.” Medina, 259 F.3d at 226. As to the

second prong, this court concludes, “that the VA officers’

actions ‘investigating and responding to potential violations of

. . . law,’ including the[] decision[] to . . . prosecute, [was]

‘based on considerations of public policy.’” Blankenship, 2022

WL 1768858, at *4.

Plaintiff does not directly argue that Santiago’s decision

to arrest her fell outside of the discretion granted to him as a

VA police officer. Instead, she argues she “should be permitted

the opportunity to discover the extent to which the policies,

regulations, and statutes of the [VA] grant discretionary

authority to Santiago to behave as he did.” (Br. in Opp’n to

Mot. to Dismiss (Doc. 25) at 12.) This argument is insufficient

to satisfy Plaintiff’s burden to “point to an unequivocal waiver

of immunity.” Williams, 50 F.3d at 304 (cleaned up). Moreover,

in light of a recent Fourth Circuit decision that VA police

officers’ decisions to prosecute are discretionary and based on

considerations of public policy, see Blankenship, 2022 WL

1768858, this court is not persuaded that further discovery

would indicate Santiago and Nellis’ prosecution of Plaintiff

fell outside their discretionary authority.

Therefore, this court finds that it lacks subject matter

jurisdiction over Plaintiff’s malicious prosecution claim.

IV. CONCLUSION

For the reasons stated herein, Defendant’s motion to

Dismiss, (Doc. 20), will be denied as to Plaintiff’s claims of

assault, false imprisonment, and unconstitutional seizure under

the Fourth Amendment because Plaintiff’s allegations, taken in

the light most favorable to Plaintiff, do not establish that

Santiago’s initial detention of Plaintiff was based on

reasonable suspicion. Defendant’s motion to dismiss will be

granted as to Plaintiff’s malicious prosecution claim because

Santiago and Nellis’ prosecution of Plaintiff was an exercise of

a discretionary function.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss,

(Doc. 20), is GRANTED IN PART AND DENIED IN PART. The motion is

GRANTED as to Plaintiff’s Malicious Prosecution Claim (Third

Claim for Relief). This claim is hereby DISMISSED.

IT IS FURTHER ORDERED that Defendant’s motion is DENIED as

to the First, Second, and Fourth Claims for Relief. The Fifth

Claim for Relief is construed as duplicative of the Fourth Claim

for Relief.

This the 7th day of March, 2023.

Wie 1. Galan

United States District J e

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