WEBSTER v. APPLE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT ANTHONY WEBSTER, )

)

Plaintiff, )

)

v. ) 1:22CV1025

)

DREW HOLLEY, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendant Drew Holley’s

Motion to Dismiss (Docket Entry 16; see also Docket Entry 17

(“Supporting Memorandum”)), to which Plaintiff responded (Docket

Entry 19 (the “Response”)) and Defendant replied (Docket Entry 20

(the “Reply”)). For the reasons that follow, the Court should deny

the Motion to Dismiss.

I. BACKGROUND

Plaintiff, proceeding pro se, filed the Complaint in this case

alleging that Defendant (at the time identified as Mike Apple, an

officer with the Alamance County, North Carolina, Sheriff’s

Office), used unlawful force in arresting Plaintiff on September

18, 2022. (See Docket Entry 2 at 2, 4.) Specifically, the

Complaint contends that Plaintiff engaged in a high speed chase

with Defendant and, after Plaintiff “got stopped” (id. at 4) and

“was in custody” (id. at 3), Defendant “allowed his K9 unit dog to

continue to attack [Plaintiff]” (id.). As a result of the police

canine’s “repeated[ attacks]” (id. at 4), Plaintiff suffered

broken ribs, a “laceration to [his] left arm[ which required] 22

staples, [as well as] scars to [his] back[, ] left side, and right

shoulder” (id.).

The Court (per the undersigned United States Magistrate Judge)

concluded that those allegations “suffic[ed] to allow the Complaint

to go forward on an excessive force claim as to Defendant Apple.”

(Docket Entry 3 at 3.) The Court (per United States District Judge

Loretta C. Biggs) adopted that Recommendation and permitted

“Plaintiff[’s] claim against Defendant Mike Apple . . . to

proceed.” (Docket Entry 6 at 1.)

In the meantime, Plaintiff amended his Complaint. (See Docket

Entry 5.) The Amended Complaint includes only the first two pages

from the United States District Court Form 14 (a “Complaint for

Violation of Civil Rights”), which consists of the title page and

a page identifying the parties to the action. (See Docket Entry 5

at 1-2.) On the second page, Plaintiff changed Defendant’s name to

“D. Holly” (id. at 2) and listed his employer as “Burlington

Police Dept.” (id.). Plaintiff attached a note to his Amended

Complaint, wherein he stated that “[his] lawyer gave [him] the

wrong name for [his suit, and that t]he officer is D. Holley.”

(Id. at 3.)

2

Plaintiff thereafter filed a letter motion with the Court,

reiterating that “[his] state lawyer gave [him] the wrong officer

name . . . and [he] need[s] to have [Defendant’s name] changed from

Officer Mike Apple to Officer Drew Holley of the Alamance County

Sheriff[’]s Office.” (Docket Entry 8 at 1.) The Court (per the

undersigned) granted that aspect of Plaintiff’s letter motion, and

terminated “Defendant Mike Apple . . . as a Defendant in this case

and [ordered] the case [to] proceed only against Defendant Officer

Drew Holley.” (Text Order dated Jan. 20, 2023.) After that Text

Order, a summons issued to Defendant Holley. (See Docket Entry

11.)

Defendant Holley now moves to dismiss the Amended Complaint.

(Docket Entry 16.) The Supporting Memorandum argues for dismissal

on several grounds. (See Docket Entry 17 at 1-25.) First, the

Supporting Memorandum contends that the Amended Complaint, which

consists of only a title page and a page identifying the parties,

fails to “specifically allege any claims against Defendant Holley.”

(Id. at 2; see also id. at n.1 {arguing that “Plaintiff’s Amended

Complaint supersedes the original Complaint and the original

Complaint is without legal effect”). Second, the Supporting

Memorandum asserts that Plaintiff did not sufficiently effect

service of process on Defendant Holley, because the summons “was

not delivered to, accepted by, or signed by Defendant Holley, by

anyone employed by the Alamance County Sheriff’s Office, by

3

Defendant Holley’s agent, or by anyone authorized to receive or

accept service on Defendant Holley’s behalf.” (Id. at 5 (emphasis

in original).) Third, the Supporting Memorandum avers that

Plaintiff’s allegations “are little more than threadbare

allegations upon which a claim of excessive force cannot be

sustained.” (Id. at 17-18.) Finally, the Supporting Memorandum

states that Defendant Holley “is entitled to qualified immunity.”

(Id. at 21.)

In response, Plaintiff explained that he only filed two pages

as his Amended Complaint “to change [Defendant’s] name . . .

because that[’]s the only request that needed to be made.” (Docket

Entry 19 at 2.) As for service of process, the Response notes that

Defendant Holley “rec[e]ived one.” (Id.) The Response also

attempts to set forth more detailed allegations surrounding the

events of September 18, 2022. (See id. at 3-8.)

Defendant’s Reply contends first that “Plaintiff’s assertions

[regarding service of process] do nothing to overcome Defendant’s

argument that service was not properly affected [sic].” (Docket

Entry 20 at 2.) The Reply also argues that “Plaintiff’s new

allegations are not properly before the Court and should neither be

credited nor addressed for purposes of resolving Defendant’s Motion

to Dismiss.” (Id. at 6.) The Reply further asserts that Plaintiff

“failed to rebut Defendant’s argument [as to qualified immunity].”

(Id. at 4.)

4

II. DISCUSSION

A. Rule 12(b) (2) and (5) Standards

Rather than challenge the substance of process, “[a] motion

under Rule 12(b) (5) . . . challeng[es] the manner or sufficiency of

service of process.” Plant Genetic Sys., N.V. v. Ciba Seeds, 933

F. Supp. 519, 526 (M.D.N.C. 1996). “[T]he technical requirements

of service [found in Federal Rule of Civil Procedure 4(e)] should

be construed liberally as long as the defendant had actual notice

of the pending suit.” Elkins v. Broome, 213 F.R.D. 273, 275

(M.D.N.C. 2003). Even so, “the rules are there to be followed, and

plain requirements for the means of effecting service of process

may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys.,

Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Rule 12(b) (2) and (5)

often go hand-in-hand because, “[b]lefore a federal court may

exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.” Omni Cap.

Int’/l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); see

also Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 228

(4th Cir. 2019) (identifying, as among “fundamentals,” dictate that

“[plersonal jurisdiction requires valid service of process that

comports with due process”).

B. Rule 12(b) (6) Standards

“A motion to dismiss pursuant to Rule 12(b)(6) tests the

sufficiency of the claims pled in a complaint.” ACA Fin. Guar.

Corp. v. City of Buena Vista, Va., 917 F.3d 206, 211 (4th Cir.

2019). “To sufficiently plead a claim, the Federal Rules of Civil

Procedure require that a pleading . .. contain .. .a short and

plain statement of the claim showing that the pleader is entitled

to relief.” Id. (citing Fed. R. Civ. P. 8(a) (internal brackets

and quotation marks omitted)). Although “[t]his pleading standard

does not regquire detailed factual allegations,” id., 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)).? The Court thus need not

accept as true any “legal conclusions,” id., or “bare assertions

devoid of further factual enhancement,” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

1 Although the Supreme Court has reiterated that “[a] document

filed pro se is to be liberally construed and a pro se complaint,

however inartfully pleaded, must be held to less” stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation

marks omitted), the United States Court of Appeals for the Fourth

Circuit has “not read Erickson to undermine Twombly’s requirement

that a pleading contain more than labels and conclusions,”

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)

(internal quotation marks omitted) (applying Twombly standard in

dismissing pro se complaint); accord Atherton v. District of

Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A

pro se complaint . . . ‘must be held to less stringent standards

than formal pleadings drafted by lawyers.’ But even a pro se

complainant must plead ‘factual matter’ that permits the court to

infer ‘more than the mere possibility of misconduct.’” (quoting

Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 697,

respectively)).

As a general matter, in ruling on a Rule 12(b)(6) motion, “a

court evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.

2011). Typically, a “court cannot go beyond these documents,” id.,

without “convert[ing] the motion into one for summary judgment,”

id.

C. Excessive Force

An arrest made through the use of excessive force constitutes

an unreasonable seizure and therefore violates the Fourth

Amendment. See Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).

“This includes attacks by police dogs improperly deployed by their

handlers.” Vathekan v. Prince George’s Cnty., 154 F.3d 173, 178

(4th Cir. 1998). Courts use an objective reasonableness standard

to determine whether “law enforcement officials used excessive

force in the course of making an arrest.” Graham v. Connor, 490

U.S. 386, 388 (1989). In that regard, the inquiry ignores the

mental state of officers involved, and focuses instead on “whether

a reasonable officer in the same circumstances would have concluded

that a threat existed justifying the particular use of force.”

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).

In assessing objective reasonableness, a court should view the

use of force “in full context, with an eye toward the

proportionality of the force in light of all the circumstances.”

7

Smith, 781 F.3d at 101-02 (internal quotation marks omitted)

(reiterating rejection of “argu[ment] that [courts] should take a

‘segmented view of the sequence of events’ and hold that each step

taken by the officer was reasonable based on [the plaintiff’s]

immediately preceding actions”). Relevant circumstances “includ[e]

the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396. Notably, “the

reasonableness of force employed can turn on a change of

circumstances during an encounter lasting only a few seconds.”

Harris v. Pittman, 927 F.3d 266, 274 (4th Cir. 2019) (internal

quotation marks omitted); see also Waterman v. Batton, 393 F.3d

471, 481 (4th Cir. 2005) (“[F]orce justified at the beginning of an

encounter is not justified even seconds later if the justification

for the initial force has been eliminated.”).

D. Qualified Immunity

Qualified immunity, in certain circumstances, “protects

government officials from liability for civil damages.” Danser v.

Stansberry, 772 F.3d 340, 345 (4th Cir. 2014). Where an official

has violated an individual’s constitutional rights, qualified

immunity will still shield that official from personal liability

“unless the official’s conduct violated a clearly established

constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232

8

(2009). “The burden of proof and persuasion with respect to a

defense of qualified immunity rests on [Defendants].” Meyers v.

Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013).

E. Defendant Holley’s Motion to Dismiss

Failure to Incorporate Factual Allegations

Defendant Holley first moves to dismiss Plaintiff’s Amended

Complaint on the grounds that, in that filing, Plaintiff failed to

“specifically allege any claims against Defendant Holley.” (Docket

Entry 17 at 2.) The Court should decline to dismiss the Amended

Complaint on that basis.

True, “an amended pleading ordinarily supersedes the original

and renders it of no legal effect.” Young v. City of Mount Ranier,

238 F.3d 567, 572 (4th Cir. 2001). But “document[s] filed pro se

[are] to be liberally construed and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94.

To that point, the United States Court of Appeals for the Fourth

Circuit has counseled district courts that, when considering a

motion to dismiss a pro se plaintiff’s complaint, the court must

not “permit technical pleading requirements to defeat the

vindication of any constitutional rights which the plaintiff

alleges, however inartfully, to have been infringed.” Gordon v.

Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Beaudett v.

City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985) (reminding

9

that “the work of an untutored hand requir[es] special judicial

solicitude”); see also Johnson v. Silvers, 742 F.2d 823, 824 n.1

(4th Cir. 1984) (holding that district court “must allow a pro se

litigant a reasonable opportunity to amend his pleadings to name

the proper defendant”).

In consideration of those principles, and with an eye towards

efficient dispute resolution, courts in this circuit regularly

consider factual allegations in a pro se plaintiff’s original and

amended complaint, and liberally construe filings associated with

an amended complaint. See Lee v. Kanode, No. 7:20-CV-00305, 2022

WL 4798263, at *1 n.1 (W.D. Va. Sept. 30, 2022) (finding that pro

se plaintiff, who neglected to sign original complaint, then

submitted signed amended complaint that lacked factual details from

original complaint, made “good faith attempt to . . . to

incorporate the factual details from his first complaint into his

amended complaint” (internal brackets omitted)); Duneske v.

Greenville Cnty. Sheriff’s Off., No. 6:20-CV-2599, 2020 WL

13747858, at *1 (D.S.C. Nov. 12, 2020) (considering factual

allegations in both original and amended complaint); Owens v.

University of S.C., No. 3:18-CV-547, 2018 WL 3587028, at *1 n.2

(D.S.C. July 26, 2018) (acknowledging general rule of Young, but

then granting plaintiff’s motion to amend his amended complaint in

order to incorporate factual allegations from original complaint

into amended complaint), recommendation adopted, No. 3:18-CV-547,

10

2019 WL 421886 (D.S.C. Feb. 4, 2019), aff’d, 771 F. App’x 299 (4th

Cir. 2019).

The Court here should conclude that Plaintiff made a “good

faith attempt to . . . to incorporate the factual details from his

first complaint into his amended complaint.” Lee, 2022 WL 4798263,

at *1 n.1. A note Plaintiff attached to his Amended Complaint

indicates that Plaintiff previously included in his (original)

Complaint “the wrong name” (Docket Entry 5 at 3), and Plaintiff, in

the Amended Complaint, then corrected Defendant’s name to “D.

Holly” (id. at 2). With just a modicum of liberal construction,

see Erickson, 551 U.S. at 94, the Court can infer that Plaintiff

wished only to change the name of Defendant, and not any other

factual allegation; otherwise, Plaintiff would have stated that he

got some other detail “wrong” (see Docket Entry 19 at 2 (Response

noting that Plaintiff only filed “the two pages to change

[Defendant’s] name and that[’s] it because that[’]s the only

request that needed to be made”).) At bottom, the Court should

defer to the United States Supreme Court’s view that, when

considering amendments to pleadings, Plaintiff “ought to be

afforded an opportunity to test his claim on the merits.” Foman v.

Davis, 371 U.S. 178, 182 (1962). Accordingly, the Court should not

dismiss this action on the grounds that Plaintiff failed to

properly incorporate the factual allegations from his Complaint

into his Amended Complaint, and instead should treat the

11

allegations in the Complaint as incorporated against Defendant

Holley.

Rule 12(b)(2) and (5)

Defendant Holley also argues for dismissal due to improper

service of process. (See Docket Entry 17 at 10.) According to the

Supporting Memorandum, “Plaintiff’s summons form instructed that

Defendant Holley be served at 109 South Maple Street, Burlington,

NC 27217, a non-existent address.” (Id. at 11.) Despite this

error, “the certified letter was nonetheless delivered to and

signed for somewhere and by someone within the City of Burlington.”

(Id. at 12.) Then, for reasons unknown to Defendant, the summons

arrived at “the Alamance County Sheriff’s Office . . ., [bu]t was

received in the normal course of business by an administrative

secretary who merely accepts regular mail on behalf of the Alamance

County Sheriff’s Office, and who is not an authorized agent to

accept service on behalf of Defendant Holley or the Alamance County

Sheriff’s Office.” (Id.; see also Docket Entry 17-2 at 1-4

(affidavit of summons recipient attesting that she lacks

authorization “to accept service on Defendant Holley’s behalf”).)

Accordingly, the Supporting Memorandum argues that the Amended

Complaint “should be dismissed for lack of personal jurisdiction.”

(Id. at 16.)

As mentioned previously, “the technical requirements of

service should be construed liberally as long as the defendant had

12

actual notice of the pending suit.” Elkins, 213 F.R.D. at 275.

But, “the rules are there to be followed, and plain requirements

for the means of effecting service of process may not be ignored.”

Armco, 733 F.2d at 1089. To that end, although “[s]Jervice of

process is not freestyle, and courts are directed not to overlook

procedural deficiencies just because actual notice occurred,”

Shaver v. Cooleemee Volunteer Fire Dep’t, No. 1:07CV00175, 2008 WL

942560, at *2 (M.D.N.C. Apr. 7, 2008), “[d]ismissal under Rule

12(b) (5) is not justified where it appears that service can be

properly made,” Plant Genetic, 933 F. Supp. at 527 (internal

quotation marks omitted); see also Gregory v. U.S./U.S. Bankr. Ct.

for Dist. of Colo., 942 F.2d 1498, 1500 (10th Cir. 1991) (stating

“general rule [] that when a court finds that service is

insufficient but curable, it generally should quash the service and

give the plaintiff an opportunity to re-serve the defendant”

(internal quotation marks omitted)); Rivera Otero v. Amgen Mfg.

Ltd., 317 F.R.D. 326, 329 (D.P.R. 2016) (curable defects in first

attempt at service of process do not warrant dismissal under Rule

12 (b) (5)).

Furthermore, “dismissal of a civil action for [inadequate

service of process] is inappropriate unless otherwise a party’s

rights would be seriously prejudiced or no reasonably conceivable

means of acquiring jurisdiction over the defendant remains.” Miree

v. United States, 490 F. Supp. 768, 776 (N.D. Ga. 1980). The

13

Supporting Memorandum does not attempt to establish prejudice (nor

could it, as Defendant Holley timely received actual notice of this

suit) and does not endeavor to show the impossibility of this Court

acquiring personal jurisdiction over him. As a result, the

inadequacy of service of process (particularly where, as here, (1)

Plaintiff proceeds pro se and relies in part on the United States

Marshals Service to obtain proper service of process, and (2)

Defendant Holley suffered no apparent prejudice) does not warrant

dismissal under Rule 12(b)(2) or (5).

The Court should not, however, deem service of process

sufficient just because Defendant Holley has received actual notice

of the lawsuit. As the Fourth Circuit has made clear, “[a]ctual

notice does not equate to sufficient service of process, even under

the liberal construction of the rules applicable to a pro se

plaintiff.” Scott v. Maryland State Dep’t of Lab., 673 F. App’x

299, 305 (4th Cir. 2016); see also In re Newbrook Shipping Corp.,

31 F.4th 889, 897 (4th Cir. 2022) (“Some courts have ventured

beyond that required by the Rules to permit service by any means

that provides actual notice. Doing so, they have reasoned,

conserves resources that would be wasted if compliance with the

Rules was required. . . . But regardless of [the] wisdom [of that

practice], . . . [a]ctual notice with no delivery to the named

person fails to satisfy the Rule’s demands.”). Accordingly, the

Court should deny Defendant Holley’s Motion to Dismiss under Rules

14

12(b)(2) and (5), but order Plaintiff to properly effect service.

To meet its obligation to assist Plaintiff (who, again, proceeds

pro se) the Court should order that Defendant Holley’s counsel (as

an officer of the Court) either (1) provide a proper service

address for Defendant Holley, or (2) propose some other solution,

such as agreeing to accept service on his behalf or to facilitate

execution of a waiver of service.

Rule 12(b)(6)2

As an additional basis for dismissal, the Supporting

Memorandum argues that, even if the Court considered the

allegations from the original Complaint as incorporated against

Defendant Holley, those allegations constitute “little more than

threadbare allegations upon which a claim of excessive force cannot

be sustained.” (Docket Entry 17 at 17-18.) As noted, those

allegations include that Plaintiff engaged in a high speed chase

with Defendant and, after Plaintiff “got stopped” (Docket Entry 2

at 4) and “was in custody” (id. at 3), Defendant “allowed his K9

unit dog to continue to attack [Plaintiff]” (id.). The Court

2 The Supporting Memorandum devotes approximately two pages to

Monell liability (see Docket Entry 17 at 21-23 (citing Monell v.

Dep’t of Social Servs., 436 U.S. 658, 690 (1978))), even though the

Amended Complaint presses a claim against Defendant Holley in only

his individual capacity (see Docket Entry 5 at 2). On that topic,

the Supporting Memorandum notes that “it does not appear that

Plaintiff seeks to make an official capacity claim against

Defendant Holley.” (Docket Entry 17 at 22.) The Court should

adopt that view, and deny as moot the Motion to Dismiss as it

relates to any official capacity claim against Defendant Holley.

15

should conclude, as it previously did, that those allegations

sufficiently support a claim for excessive force. (See Docket

Entry 6 at 1 (allowing excessive force claim in Complaint to

proceed).) Further, at this stage, the Court should not consider

any new allegations Plaintiff raised in the Response. See

Odjaghian v. HHS Tech. Grp., LLC, 848 F. App’x 534, 541 (4th Cir.

2021) (stating “well-established [principle] that parties cannot

amend their complaints through briefing”).3

3 Defendant Holley alternatively argues that, if the Court did

consider Plaintiff’s new allegations, those allegations would serve

to undermine his excessive force claim. (See Docket Entry 20 at 7-

9.) The Court, even if it elected to consider Plaintiff’s new

allegations in the Response, should not construe those allegations

as Defendant Holley does. For example, the Reply argues that the

Response concedes that “[Plaintiff] had not surrendered to

Defendant and readily acknowledges that Defendant had not gained

control over Plaintiff or otherwise subdued Plaintiff.” (Id. at

8.) The Response, however, merely alleges that, “[h]ad [Defendant]

Holley told [Plaintiff] before he deployed his K9[, Plaintiff]

would have known not to move.” (Docket Entry 19 at 6 (emphasis

added).) That allegation does not in any way conflict with the

allegation in the Complaint that Defendant Holley permitted his

canine to “continue to attack [Plaintiff] after [he] was in

custody.” (Docket Entry 2 at 3.) The former allegation relates to

a period prior to Plaintiff’s placement in custody; the latter

speaks to what transpired after Defendant placed Plaintiff in

custody. Similarly, the Response’s allegation that Plaintiff

“never resisted [Defendant] Holley” (Docket Entry 19 at 4) does not

contradict the allegation in the Complaint that Defendant Holley’s

allegedly excessive use of force occurred after “a high speed

chase” (Docket Entry 2 at 4). The new allegation in the Response,

placed in context, refers to Plaintiff’s conduct after “his exit

of [his] car.” (Docket Entry 19 at 4; see also id. (alleging that,

while Plaintiff “was detained” with “one arm behind his back,”

Defendant Holley “continually command[ed] the K9 to get

[Plaintiff], get [Plaintiff],” and that, as Defendant Holley

instructed his canine to continue biting Plaintiff, Plaintiff

“never resisted . . . in any way”).) Thus, even though the Court

should ignore the Response’s new allegations for purposes of ruling

16

As summarized previously, the unreasonable deployment of a

police canine can support a claim for excessive force. See

Vathekan, 154 F.3d at 178. Moreover, “force justified at the

beginning of an encounter is not justified even seconds later if

the justification for the initial force has been eliminated.”

Waterman, 393 F.3d at 481. Taken together, it follows from those

principles that continued deployment of a police canine against a

suspect who does not pose a threat to officers or the public

constitutes excessive force. See Keenan v. Ahern, 524 F. Supp. 3d

472, 478–79 (E.D. Va. 2021) (denying motion to dismiss and

concluding with “little difficulty” that allegation of police

canine bites of motionless individual “amounts to excessive force

in violation of the Fourth Amendment”).

Here, Plaintiff’s factual allegations, which the Court must

accept as true, see Iqbal, 556 U.S. at 678, adequately support a

claim that Defendant Holley subjected Plaintiff to excessive force.

According to those allegations, Plaintiff “was in custody” (Docket

Entry 2 at 3), but Defendant Holley “allowed his K9 unit dog to

continue to attack [Plaintiff]” (id.). Defendant contends that

these limited allegations would require “th[e] Court to conclude

that Defendant Holley used excessive force, because Defendant

Holley’s use of force was excessive.” (Docket Entry 17 at 19.)

on the Motion to Dismiss, if the Court did examine those

allegations, it should not interpret them as inconsistent with

those in Plaintiff’s original Complaint.

17

Not so. Ample authority supports the proposition that continued

use of force against an individual, either in custody or not posing

a threat, suffices to support a claim for excessive force. E.g.,

Jones v. Buchanan, 325 F.3d 520, 532 (4th Cir. 2003) (reiterating

that officers may not employ “unnecessary” or “gratuitous” force in

making a seizure; Maney v. Garrison, 681 F. App’x 210, 220 (4th

Cir. 2017) (“To be sure, a bite from a police canine is a

significant use of force.”); Orellana v. United States, No. 20-

CV-0845, 2021 WL 1251888, at *7 (D. Md. Apr. 5, 2021) (allegation

that officers, “without any verbal warning,” released police dog

into basement where plaintiff and her child slept sufficed to set

forth claim for excessive force). In sum, the Court should not

dismiss this action based on the argument that Plaintiff failed to

state an excessive force claim.4

4 Because Plaintiff’s excessive force claim should proceed,

and due to the limited factual record available to the Court at

this early stage of the proceedings, the Court should also deny

Defendant Holley’s Motion to Dismiss as it relates to the issue of

punitive damages. (See Docket Entry 17 at 24 (arguing that

“Plaintiff has not alleged malice”).) The Supporting Memorandum

cited no authority for its contention that a plaintiff must

expressly allege malice in order to sustain a request for punitive

damages; the case Defendant Holley cited involved a court

dismissing a plaintiff’s independent claim for punitive damages,

see McMahon v. Synthron, Inc., No. 1:05-CV-324, 2006 WL 149054, at

*5 (W.D.N.C. Jan. 18, 2006) (noting that “punitive damages is not

a cause of action, but is instead a remedy”). Plaintiff here did

not bring a “claim” for punitive damages; he only sought punitive

damages as a remedy. (See Docket Entry 2 at 5 (seeking “punitive

. . . damages” under section entitled “Relief”).)

For this same reason, the Court should reject the Reply’s argument

that Plaintiff abandoned his claim for punitive damages by failing

18

Qualified Immunity

Given the recommended disposition above, the Court should

similarly deny the Motion to Dismiss as it relates to the issue of

qualified immunity. At the time of Plaintiff’s alleged arrest,

Fourth Circuit precedent clearly established that “[a]n attack by

an unreasonably deployed police dog in the course of a seizure is

a Fourth Amendment excessive force violation.” Vathekan, 154 F.3d

at 178. Likewise, precedent clearly established that “[t]he use of

any unnecessary, gratuitous, and disproportionate force . . .

precludes an officer from receiving qualified immunity if the

subject is unarmed and secured.” Meyers, 713 F.3d at 735; see also

Jones, 325 F.3d at 533–34 (collecting cases).

Accordingly, the Court should conclude that “the principles

clearly espoused by the Fourth Circuit in [the above] cases gave

to raise an “argument in opposition to Defendant’s assertion that

Plaintiff lacks any entitlement to punitive damages.” To repeat,

Plaintiff did not bring a claim for punitive damages. And, in any

event, by citing inapposite authority, the Motion to Dismiss failed

to raise a colorable argument that Plaintiff lacks entitlement to

punitive damages. Any failure by Plaintiff to adequately respond

would not turn a flawed argument by Defendant Holley into a sound

one. Moreover, when remedying a constitutional tort, “[punitive]

damages are available . . . for conduct that involves reckless or

callous indifference to the federally protected rights of others.”

Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (internal

quotation mark omitted). At this stage, and in considering only

the allegations set forth in the Complaint, the Court should

conclude that Defendant’s continued deployment of a police canine

against an individual in custody, at a minimum, could support a

finding of “reckless or callous indifference” to Plaintiff’s

constitutional rights. See Cooper, 814 F.2d at 948. The Court

should therefore deny the Motion to Dismiss on the issue of

punitive damages.

19

Defendant [Holley] more than fair warning that his conduct, under

the circumstances presented, was unlawful.” Keenan, 524 F. Supp.

3d at 483 (internal quotation marks omitted). The current posture

of this case, as well as the mandate that the Court accept as true

Plaintiff’s allegations, warrants this conclusion. See Ray v.

Roane, 948 F.3d 222, 229 (4th Cir. 2020) (reversing district

court’s grant of qualified immunity at motion to dismiss stage

because court failed to accept as true all allegations in

complaint); Goodman v. Praxair, Inc., 494 F.3d 458, 464 (Ath Cir.

2007) (discussing improbable circumstances under which courts can

fairly evaluate affirmative defenses on motion to dismiss, given

that motion to dismiss “tests the sufficiency of the complaint”).

“Defendant is, of course, free to assert the defense of qualified

immunity again at the summary judgment stage with the benefit of a

more fully developed evidentiary record.” Keenan, 524 F. Supp. 3d

at 484. But, for now, the Court should deny the Motion to Dismiss

on this point.’

5 In the Reply, Defendant Holley contends that Plaintiff’s

failure to address his arguments as to qualified immunity “has

resulted in [Plaintiff’s] abandonment of his claims.” (Docket

Entry 20 at 6.) The Reply also cites several cases for the

proposition that “the failure to address an argument in opposition

to a motion to dismiss constitutes an abandonment of the claim.”

(Id. at 5 (citing Eary v. Anderson Equip. Co., No. 2:21cv00104,

2021 WL 1910040, *2 (S.D. W. Va. May 12, 2021); Sawyers v. United

Parcel Service, Inc., No. 1:18cv1037, 2019 WL 4305771 (M.D.N.C.

Sept. 11, 2019); Fravel v. Ford Motor Co., 973 F. Supp. 2d 651, 654

(W.D. Va. 2013); Ferdinand-Davenport v. Children’s Guild, 742 F.

Supp. 2d 772, 777 (D. Md. 2010).) But those cases do not support

such a broad proposition, because they (respectively) entailed a

20

III. CONCLUSION

The Complaint, as amended, adequately states an excessive

force claim against Defendant Holley, and Defendant Holley has not

demonstrated entitlement to qualified immunity. Further,

Plaintiff’s deficient, but curable, attempt at service of process

does not warrant dismissal of this action.

IT IS THEREFORE RECOMMENDED that:

1) The Motion to Dismiss (Docket Entry 16) be denied as moot

with regard to any official capacity claim;

2) The Motion to Dismiss, in all other respects, be denied;

3) Defendant Holley’s counsel either (1) provide a correct

address for Defendant Holley, or (2) propose another option for

obtaining service of process; and

4) Plaintiff properly effect service on Defendant Holley.

This 9th day of August, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

complete failure to respond to a motion to dismiss, see Eary, 2021

WL 1910040, at *2, an express indication from the plaintiff “that

she ha[d] elected not to pursue a [certain] claim, Fravel, 973 F.

Supp. 2d at 654, and two employment discrimination cases where the

plaintiff brought a claim that exceeded the scope of the charge of

discrimination with the EEOC, and failed to argue otherwise, see

Ferdinand-Davenport, 742 F. Supp. 2d at 777; Sawyers, 2019 WL

4305771, at *3. Defendant Holley cannot persuasively use those

cases to buttress his otherwise lacking (and premature) argument as

to qualified immunity (an affirmative defense, not a claim),

particularly given that Defendant Holley, as the moving party,

bears “[t]he burden of proof and persuasion with respect to

[qualified immunity],” Meyers, 713 F.3d at 731.

21