# WEBSTER v. APPLE

> District Court, M.D. North Carolina · August 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10254415

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254415

## How later opinions describe it (automated extraction)

- holding that district court “must allow a pro se litigant a reasonable opportunity to amend his pleadings to name the proper defendant”
- 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)
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254415. Public record. Not legal advice.