# STREET v. SANTIAGO

> District Court, M.D. North Carolina · March 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10254222

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

=_ 20 =_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254222. Public record. Not legal advice.