Raden v. Fleming

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

JAMES RADEN, )

)

Plaintiff, )

)

v. ) CIVIL CASE NO. 3:24-cv-407-ECM

) [WO]

LEE CRISP, et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

On June 12, 2024, Deputy Lee Fleming (“Fleming”) and Sergeant Lee Crisp

(“Crisp”) (collectively, “the Defendants”), members of the Lee County Sheriff’s Office,

with assistance from “a German Shepherd named Junior[,]” arrested James Raden

(“Raden”) in Phenix City, Alabama. (Doc. 19 at 2–5, paras. 7–18).1 Raden describes the

encounter with the Defendants and Junior as a “chaotic confrontation . . . that left [him]

with severe canine bite injuries to his shoulder [and] arms, and a broken hand.” (Id. at 2–

3, para. 7).

Raden’s second amended complaint (“Operative Complaint”) asserts two counts,

each brought pursuant to 42 U.S.C. § 1983. In Count I, Raden alleges that Fleming used

excessive force in violation of the Fourth and Fourteenth Amendments when he released

Junior’s leash, resulting in the canine attack. (Id. at 7–9, paras. 26–32). In Count II, Raden

1 For clarity, the Court refers to the document and page numbers generated by CM/ECF.

alleges that Crisp’s actions were “objectively unreasonable and with deliberate indifference

by failing to intervene” during the canine attack. (Id. at 9–10, para. 34). The Defendants

separately moved to dismiss Raden’s Operative Complaint, invoking qualified immunity.

(Docs. 23, 29).2 The motions to dismiss are fully briefed. (See docs. 24, 26, 27, 30, 32,

33). After careful consideration of the motions, briefs, and applicable law, the Court finds

that Fleming’s motion to dismiss is due to be GRANTED in part and DENIED in part and

Crisp’s motion to dismiss is due to be GRANTED.

II. JURISDICTION AND VENUE

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.

§§ 1331 and 1343. Personal jurisdiction and venue are uncontested, and the Court

concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

III. STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “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)).

“Determining whether a complaint states a plausible claim for relief [is] . . . a

context-specific task that requires the reviewing court to draw on its judicial experience

2 Raden separately responded to Crisp’s and Fleming’s motions to dismiss. (See docs. 26, 32). Raden’s

responses are nearly identical, and the Court cannot detect any substantive differences between them.

and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). The plausibility standard

requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

Conclusory allegations that are merely “conceivable” and fail to rise “above the speculative

level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at 555–56. This

pleading standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

IV. FACTS3

On the evening of June 12, 2024, Raden—subject to an outstanding arrest warrant—

was standing in the backyard of his Phenix City, Alabama residence. (Doc. 19 at 3, paras.

8–9). A vehicle arrived on scene, and an individual exited the vehicle and yelled “Police.”

(Id. at 3, para. 10). “Once the officers came into view . . . Raden . . . voluntarily got down

onto the ground on his back and put his hands up with his palms open . . . [and] submitted

to the authority of the officers.”4 (Id. at 3, para. 11). Raden was unarmed. (Id.). Two of

3 At the motion to dismiss stage, the Court “must view the [Operative] [C]omplaint in the light most

favorable to [Raden] and accept all of [Raden]’s well-pleaded facts as true.” Am. United Life Ins. Co. v.

Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (citation omitted).

4 Raden’s Operative Complaint states, “Raden is unable to name all of the officers involved” in his

June 12, 2024 arrest. (Doc. 19 at 3, para. 7).

the officers, Fleming (alongside his canine partner, Junior) and Crisp were in Raden’s

backyard during his arrest. (Id. at 3–4, paras. 12–13).5

Fleming stood “approximately” ten to fifteen feet away from Raden. (Id. at 4, para.

13). Fleming “turned his flashlight onto . . . Raden, who was . . . laying on the ground with

the palms of his hands open and in the air[.]” (Id.). Fleming called out to Crisp, who later

walked over and “made a hushed comment” to Fleming. (Id. at 4, para. 14). After Crisp’s

comment, Fleming “dropped the leash he was using to restrain” Junior. (Id.). Raden alleges

that the Defendants watched Junior attack Raden’s shoulder “as he lay on the ground”

causing him to “roll[] onto his stomach and put his hands behind his back to allow the

Officers to handcuff him.” (Id. at 4–5, para. 17). Raden further claims that after he rolled

onto his stomach, Junior attacked him a second time by biting his “tricep as he lifted his

arm to protect his neck from the dog’s bite.” (Id. at 5, para. 18). Raden later received

medical care at a local hospital. (Id. at 5, para. 20). Raden’s shoulder and right hand were

injured during his arrest. (Doc. 19 at 5–6, paras. 21, 23). Additionally, Raden alleges he

suffers extreme emotional and physical pain resulting from Junior’s attack. (Id. at 6, para.

25).

V. DISCUSSION

Crisp and Fleming argue that dismissal is proper by invoking qualified immunity.

(Doc. 24 at 5–18; doc. 30 at 5–16). The Defendants argue qualified immunity shields them

5 Raden’s version of events suggests that Crisp entered the backyard after Fleming. (See doc. 19 at 4, para.

14) (“Once . . . Fleming observed . . . Raden on the ground, he called out ‘Sarg’, and subsequently Sergeant

Crisp came into . . . Raden’s view.”).

from liability for two primary reasons: (1) Raden’s factual allegations are based on

“information and belief” and therefore fail to state a constitutional violation (doc. 24 at 7–

14; doc. 30 at 8–14) and (2) Raden fails to demonstrate a violation of clearly established

law (doc. 24 at 17–18; doc. 30 at 15–16).

First, the Court will assess the Defendants’ challenge to Raden’s factual allegations.

Second, the Court will evaluate Raden’s Fourth Amendment and Fourteenth Amendment

claims against Fleming. (Doc. 19 at 7–9, paras. 26–32). Finally, the Court will review

Raden’s “deliberate indifference / failure to intervene” claim against Crisp. (Id. at 9–11,

paras. 33–40).

A. Raden’s “Information and Belief” Allegations

Raden’s Operative Complaint states that his factual allegations “are asserted upon”

Raden’s “information and belief.” (Id. at 2, para. 7). The Defendants seize on this

language, arguing that Raden’s allegations “are not entitled to any presumption of . . . truth.

The court is not required to assume their veracity.” (Doc. 24 at 10; doc. 30 at 10–11). The

Court is not persuaded.

The Defendants correctly note that courts “do not have to take as true” conclusory

allegations made “upon information and belief.” See, e.g., Mann v. Palmer, 713 F.3d 1306,

1315 (11th Cir. 2013) (citing Twombly, 550 U.S. at 551, 557).6 But many of Raden’s

allegations are not conclusory. Rather, Raden’s Operative Complaint “contain[s] sufficient

6 Raden’s invocation of “upon information and belief” is not without consequence. For example, Raden

alleges that “Fleming nor any other officer at the scene had knowledge or reliable information that . . .

Raden was committing or had committed any violent or serious crime[.]” (Doc. 19 at 8, para. 28(d)). The

Court does not have to take as true Raden’s conclusory allegations regarding the Defendants’ knowledge

of his previous criminal history.

factual matter” that “allows the [C]ourt to draw the reasonable inference that the

[D]efendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Raden’s

factual allegations paint a picture, based on his first-hand experience, that Fleming’s

actions—and—Crisp’s inaction make liability plausible. See id. (“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”).

Raden cites to sufficient specific facts concerning the Defendants’ conduct that

makes liability plausible. This is more than enough to “raise a right to relief” against

Fleming and Crisp “above the speculative level” and “nudge[] [Raden’s] claims across the

line from conceivable to plausible[.]” Twombly, 550 U.S. at 555, 570. Thus, the

Defendants’ challenges to Raden’s “information and belief” allegations fail.

B. Qualified Immunity

The Defendants contend they are entitled to qualified immunity from Raden’s

§ 1983 claims. Qualified immunity protects government officials from suit when they

perform “discretionary functions” and “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). “For qualified immunity to apply, an officer ‘must

first establish that he acted within his discretionary authority.’” Powell v. Snook, 25 F.4th

912, 920 (11th Cir. 2022) (quoting Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir.

2013)).

There is no dispute that the Defendants were acting within the scope of their

discretionary authority as law enforcement officers. See Maughon v. City of Covington,

505 F. App’x 818, 822 (11th Cir. 2013) (per curiam) (“[T]here can be no doubt that [the

Defendants] ha[ve] met the first prong of the discretionary authority test . . . because, when

making the arrest, [they] w[ere] . . . undertaking . . . act[s] clearly within the official

responsibilities of . . . police officer[s].”).7 Because there is no dispute that the Defendants

acted within the scope of their discretionary authority, the burden shifts to Raden to show

that qualified immunity is inappropriate. Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir.

2014) (citation omitted). Raden must next demonstrate that the Defendants (1) “violated

[his] constitutional right[s],” and that (2) his constitutional rights “w[ere] clearly

established at the time of the alleged violation”—otherwise the Defendants are entitled to

qualified immunity. See Ingram v. Kubik, 30 F.4th 1241, 1256 (11th Cir. 2022); see also

Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019) (“To deny qualified immunity at

the motion to dismiss stage, we must conclude both that the allegations in the complaint,

accepted as true, establish a constitutional violation and that the constitutional violation

was ‘clearly established.’”) (emphasis omitted) (quoting Keating v. City of Mia., 598 F.3d

753, 762 (11th Cir. 2010)). The Court will analyze whether Raden plausibly alleges that

Fleming violated his clearly established right to be free from excessive force before

assessing Raden’s failure to intervene claim against Crisp.

1. Excessive Force

Raden brings an excessive force claim under the Fourth and Fourteenth

Amendments against Fleming. For the reasons stated below, Fleming’s motion to dismiss

7 The Court here, and elsewhere in this Opinion, cites to nonbinding authority. While the Court recognizes

that these cases are not precedential, the Court finds them persuasive.

is due to be GRANTED as to Raden’s Fourteenth Amendment claim and DENIED as to

Raden’s Fourth Amendment Claim.

a. Fourteenth Amendment Claim

“[A]ll claims that law enforcement officers have used excessive force—deadly or

not—in the course of an arrest . . . should be analyzed under the Fourth Amendment and

its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”

Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). Raden alleges

Fleming used excessive force “during his arrest” when Fleming “dropped [Junior’s] . . .

leash[,]” resulting in the canine attack. (Doc. 19 at 4–5, paras. 14, 18).

Consequently, Raden’s excessive force claim is “grounded in the Fourth

Amendment’s prohibition on ‘unreasonable searches and seizures.’” Richmond v. Badia,

47 F.4th 1172, 1180 (11th Cir. 2022) (quoting U.S. CONST. amend. IV); see also Crocker

v. Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021) (“So, under the Supreme Court’s current

framework, the Fourth Amendment covers arrestees, the Eighth Amendment covers

prisoners, and the Fourteenth Amendment covers ‘those who exist in the in-between—

pretrial detainees.’”) (quoting Piazza v. Jefferson County, 923 F.3d 947, 952 (11th Cir.

2019)). Therefore, because it is undisputed that Raden’s claims of excessive force relate

to conduct during his arrest, Raden’s Fourteenth Amendment excessive force claim is due

to be dismissed against Fleming.

b. Fourth Amendment Claim

To determine whether Fleming committed a constitutional violation, the Court must

evaluate whether his use of force was reasonable. Graham, 490 U.S. at 395. Whether the

force used to effectuate Raden’s arrest was reasonable “requires a careful balancing of ‘the

nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against

the countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v.

Garner, 471 U.S. 1, 8 (1985)). The Court must consider whether the force applied “‘[was]

objectively reasonable in light of the facts confronting the officer,’ a determination [this

Court] make[s] ‘from the perspective of a reasonable officer on the scene[,]’ and not ‘with

the 20/20 vision of hindsight.’” Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347,

1353 (11th Cir. 2015) (per curiam) (quoting Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th

Cir. 2009) (per curiam)). “[T]he right to make an arrest . . . necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490

U.S. at 396.

The Supreme Court has outlined several factors courts must consider when

determining whether an officer used excessive force during an arrest, including: “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.” Id. Additional factors include “the justification for the application of

force, the relationship between the justification and the amount of force used, and the extent

of any injury inflicted.” Richmond, 47 F.4th at 1182.

i. Constitutional Violation

Raden argues that Fleming’s “unrestrained and uncontrolled release” of Junior

“with knowledge [that the canine] would attack . . . Raden” constitutes excessive force

violative of the Fourth Amendment. (Doc. 19 at 7, para. 28). Viewing the facts in the light

most favorable to Raden, he establishes that he: (1) “voluntarily got down onto the ground

on his back and put his hands up with his palms open” (id. at 3, para. 11); (2) did not flee

from law enforcement (id. at 7, para. 28(b)); and (3) was bitten by Junior while submitting

to the Defendants (see id. at 4, para. 17). Thus, Raden argues that Fleming did not need to

release Junior to effectuate his arrest.

At this stage, under the facts alleged, Fleming’s use of a canine unit was not

objectively reasonable. The Eleventh Circuit has held “that gratuitous use of force when a

criminal suspect is not resisting arrest constitutes excessive force.” Hadley v. Gutierrez,

526 F.3d 1324, 1330 (11th Cir. 2008). Viewing the facts in the light most favorable to

Raden, he neither resisted arrest nor posed a danger to Fleming sufficient to warrant the

use of a canine. See id; see also Crenshaw, 556 F.3d at 1293 (“[I]t would have been

objectively unreasonable for [police] to allow the canine to continue attacking [the plaintiff

arrestee] after he was secured[.]”) (emphasis in original). Under Raden’s version of events,

he was unarmed and on the ground “with his palms open.” (See doc. 19 at 3, para. 11).

And there is no indication that Raden posed an immediate threat to the Defendants or the

public. (See id. at 8, para. 28(e)). Thus, considering the Graham factors and established

Eleventh Circuit precedent, Raden has identified a constitutional violation attributable to

Fleming.

ii. Clearly Established

Having established that Raden has adequately shown a constitutional violation, the

Court must determine whether his Fourth Amendment right to be free from excessive force

was clearly established in June 2024 when these events occurred. See Patel v. Lanier

County, 969 F.3d 1173, 1181 (11th Cir. 2020) (citation omitted). A right is clearly

established when “the state of the law at the time of the incident g[ives] [the Defendants]

‘fair warning’ that [their alleged] conduct was unlawful.” Perez v. Suszczynski, 809 F.3d

1213, 1222 (11th Cir. 2016) (citation omitted). To start, the Court must resist “defin[ing]

clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011). To establish a violation of clearly established law, this Court does not “require

[Raden to locate] a case directly on point, but existing precedent must have placed the . . .

constitutional question beyond debate.” Id. at 741. “[T]he clearly established law must be

‘particularized’ to the facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017) (per

curiam) (citation omitted).

Raden can demonstrate that the law was clearly established in one of three ways:

(1) case law with indistinguishable facts clearly establishing

the constitutional right;

(2) a broad statement of principle within the Constitution,

statute, or case law that clearly establishes a constitutional

right; or

(3) conduct so egregious that a constitutional right was clearly

violated, even in the total absence of case law.

Gilmore v. Ga. Dep’t of Corr., 144 F.4th 1246, 1258 (11th Cir. July 11, 2025) (en banc)

(quotation marks omitted). The Court first turns to Eleventh Circuit published case law

concerning canine bites and excessive force to determine whether Raden’s right to be free

from excessive force was clearly established in June 2024. See Priester v. City of Riviera

Beach, 208 F.3d 919 (11th Cir. 2000); Crenshaw, 556 F.3d 1283 (11th Cir. 2009); Jones

v. Fransen, 857 F.3d 843 (11th Cir. 2017); Edwards v. Shanley, 666 F.3d 1289 (11th Cir.

2012).8

In Priester, the titular arrestee (Priester) was suspected of stealing approximately

twenty dollars’ worth of snacks from a golf shop—a minor crime. 208 F.3d at 927. The

record did not suggest that Priester was armed or posed an immediate threat to law

enforcement or the public. Id. Priester initially fled from law enforcement but, after he was

discovered, he immediately submitted to them. Id. at 923, 927. Further, when he was

“ordered . . . to get down on the ground, [Priester] complied.” Id. at 927. Despite Priester’s

cooperation, law enforcement “ordered and allowed [the] dog to attack and bite [Priester]

. . . for at least two minutes.” Id. The Eleventh Circuit held that the officer violated

Priester’s clearly established Fourth Amendment right to be free from the use of excessive

force. Id. at 927–28.

Rather than stealing snacks from a golf shop, the arrestee in Crenshaw was

suspected of committing at least one—potentially two—armed robberies. 556 F.3d 1292–

93. Crenshaw violently fled police and crashed his vehicle into a marked patrol car. Id. at

1292. After the crash, Crenshaw ran into a “densely wooded area.” Id. Law enforcement

“had every reason to believe that Crenshaw was armed and dangerous.” Id. Although

Crenshaw notified the officers of his whereabouts by yelling “I am over here[,]” the

Eleventh Circuit held that the canine-controlling officer did not violate Crenshaw’s Fourth

8 Raden cites Edwards and Priester in support of his theory that his right to be free from excessive force

was clearly established in June 2024. (See doc. 26 at 13; doc. 32 at 13).

Amendment right to be free from the use of excessive force for using a canine to locate and

apprehend Crenshaw—a suspected armed fugitive. Id. at 1292–93.

Jones involved a “case . . . not directly on all fours with either Priester or

Crenshaw.” 857 F.3d at 854. Jones was suspected of stealing a television from his ex-

girlfriend’s residence. Id. Jones did not readily surrender and led law enforcement into

“physically challenging terrain with brush and boulders . . . and did not respond in any way

to” law enforcement’s canine warnings. Id. Although the canine harmed Jones, the

Eleventh Circuit held that Priester and Crenshaw did not provide law enforcement with

“‘fair’ notice necessary to breach qualified immunity.” Id.

Finally, Edwards held that law enforcement’s decision to use a canine to “track and

initially subdue [a] fleeing [suspect] was constitutional, but further conclude[d] that [law

enforcement] used unconstitutionally excessive force when he permitted his dog to attack

[the arrestee] for five to seven minutes.” 666 F.3d at 1295. Edwards committed a minor

traffic violation, stopped his car, and fled from police on foot. Id. at 1292–93. Edwards

ran into the woods and police used a canine to locate him. Id. at 1293. Police issued two

warnings, received no response, and entered the wooded area. Id. Edwards—lying on his

stomach with his hands exposed—failed to “surrender when [law enforcement] allowed

[the] dog to first bite Edwards’s leg[.]” Id. at 1295. The attack lasted between five and

seven minutes as Edwards begged the officers to call off the canine. Id. at 1293.

Considering the Eleventh Circuit’s case law, the Court reviews the particularized

factual scenario outlined in Raden’s Operative Complaint. Viewing these facts in the light

most favorable to Raden, on June 12, 2024, he was: (1) illuminated by flashlight; (2) not

fleeing; (3) not resisting; (4) on the ground “with the palms of his hands open and in the

air”; and (5) compliant with law enforcement’s commands. (See doc. 19 at 3–8). Raden

notes that Fleming gave him no verbal warning that he intended to release Junior. (Id. at 4,

para. 16). Raden’s version of events sufficiently parallels the events described in Priester

such that Fleming had fair warning that using a canine to effectuate an arrest in this

particularized factual scenario violated the Fourth Amendment.

Under the facts alleged, Raden complied with law enforcement commands and did

not resist or make threatening movements. Further, unlike Priester, Raden did not flee

from law enforcement at the outset of his encounter with the Defendants. Raden did not

lead officers to an unknown wooded area, instead he laid on the ground, in his backyard

with the “palms of his hands open and in the air[.]” (Id. at 4, para. 13). At this stage, Raden

sufficiently established a violation of clearly established law. Although slight differences

exist between Raden’s allegations and the facts in Priester (specifically, how long the bite

lasted), the law does not “require [Raden to locate] a case directly on point, [and] existing

precedent . . . place[s] the . . . constitutional question beyond debate.”9 al-Kidd, 563 U.S.

at 741. Because Fleming had fair warning that using Junior to effectuate Raden’s arrest

violated the Constitution, he is not entitled to qualified immunity at this stage.10

9 Even if prior case law—Priester—did not provide Fleming “fair warning” that his conduct, at this stage

was unconstitutional, the Court finds that “a reasonable officer would not need prior case law to know that

releasing a canine onto an unarmed, nonthreatening, non-fleeing, . . . compliant arrestee constitutes

excessive force.” See Nelson v. Wilson, 2025 WL 1919486, at *6 (M.D. Ala. July 11, 2025).

10 Raden alleges that the Defendants wore “body cam[era]s that captured the details of this encounter.”

(Doc. 19 at 3, para. 7). The Court has not reviewed any purported video footage of Raden’s arrest.

2. Failure to Intervene11

Raden alleges that Crisp “acted objectively unreasonable and with deliberate

indifference by failing to intervene as . . . Raden was brutally and unlawfully attacked by

the police dog.” (Doc. 19 at 9–10, para. 34). Raden claims that “Crisp was present and

also standing [ten to fifteen] feet away from . . . Raden when . . . Fleming released

[Junior][.]” (Id. at 10, para. 35). Therefore, according to Raden’s Operative Complaint,

“Crisp observed and was in a position to intervene to stop . . . Fleming’s” use of force. (Id.

at 10, para. 37).

Police officers “can be liable for failing to intervene when another officer uses

excessive force.” Priester, 208 F.3d at 924. “The principle that an officer must intervene

when he or she witnesses unconstitutional force has been clearly established in this Circuit

for decades.” Helm v. Rainbow City, 989 F.3d 1265, 1272 (11th Cir. 2021) (citing Priester,

208 F.3d at 927). “If a police officer, whether supervisory or not, fails or refuses to

intervene when a constitutional violation . . . takes place in his presence, the officer is

directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).

“This liability, however, only arises when the officer is in a position to intervene and fails

to do so.” Priester, 208 F.3d at 924.

11 Raden styles his claim against Crisp as “deliberate indifference / failure to intervene.” (Doc. 19 at 9).

“Deliberate indifference” is ordinarily analyzed under the Eighth Amendment’s framework. See Wade v.

McDade, 106 F.4th 1251, 1255 (11th Cir. 2024) (en banc). Raden repeatedly alleges that Crisp:

(1) “fail[ed] to intervene” (doc. 19 at 10, para. 34); (2) “had a duty to intervene” (id. at 10, para. 35); and

(3) “observed and was in a position to intervene” (id. at 10, para. 37). Because Raden’s Count II allegations

mirror a traditional failure to intervene claim, the Court pretermits discussion on Raden’s invocation of

“deliberate indifference.”

Here, Raden alleges that “Crisp made a hushed comment” to Fleming, who then

dropped Junior’s leash. (Doc. 19 at 4, para. 14). Raden claims Crisp was in a position to

intervene because he was standing within ten to fifteen feet of Raden during the attack. (Id.

at 10, para. 35). Although Raden claims Junior attacked him twice, he does not allege how

long the biting incident occurred. (Id. at 4–5, para. 17). Raden also notes that Fleming

released Junior “without . . . warning.” (Id. at 4, para. 16).

Although Raden alleges facts sufficient to establish Crisp’s presence at the scene,

he fails to establish that Crisp was in a position to intervene. Without knowing how long

the incident lasted, the Court is left to guess whether Crisp could have intervened.12 Unlike

Raden’s claim against Fleming, Priester undercuts his claim against Crisp. In Priester, the

Eleventh Circuit held that an officer was in a position to intervene when a canine attack

lasted two minutes and was preceded by a verbal warning. 208 F.3d at 927. That Court

specifically noted that the officer “observed the entire attack and had the time and ability

to intervene, but he did nothing.” Id. (emphasis added). Thus, on these facts, Raden has

not shown a violation of a clearly established right. Therefore, even viewing the facts in

the light most favorable to Raden, Crisp’s presence at the scene is insufficient to overcome

qualified immunity as to Crisp’s failure to intervene.

12 In response to Crisp’s motion to dismiss, Raden describes the events as occurring “over a prolonged

period, giving Crisp ample opportunity to stop or prevent the attack.” (Doc. 26 at 15) (emphasis added).

Crisp does not allege how long the attack lasted in his Operative Complaint. Rather, he simply states that

Junior bit him twice. (Doc. 19 at 4–5, para. 17). Raden cannot amend his Operative Complaint in response

to a motion to dismiss. See Equal Emp. Opportunity Comm’n v. Lab. Sols. of AL LLC, 242 F. Supp. 3d

1267, 1284 (N.D. Ala. 2017).

VI. CONCLUSION

For the reasons stated, it is hereby ORDERED as follows:

1. Defendant Fleming’s motion to dismiss (doc. 29) is GRANTED as to

Raden’s Fourteenth Amendment claim and DENIED as to Raden’s Fourth Amendment

excessive force claim (Count I).

2. Defendant Crisp’s motion to dismiss (doc. 23) is GRANTED as to Raden’s

failure to intervene claim (Count II).

3. Defendant Crisp is dismissed as a party to this action.

4. This case shall proceed on the Fourth Amendment excessive force claim

against Defendant Fleming.

DONE this 19th day of September, 2025.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE