United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
R. Underhill United States District Judge.
April 10, 2017, Jason Boudreau, a federal inmate currently
confined at the Donald W. Wyatt Detention Facility in Central
Falls, Rhode Island, filed a civil rights complaint pro
se pursuant to 42 U.S.C. § 1983 against the town of
Branford, Connecticut, the Branford Police Department
(“BPD”), five members of the BPD, and four
members of the United States Department of Homeland Security
(“DHS”) for using excessive force during his
arrest, in violation of his Fourth Amendment protection
against unreasonable seizures. Doc. No. 1. Boudreau also
raised several tort claims against the defendants, including
assault, battery, and intentional and negligent infliction of
emotional distress. On July 12, 2017, I issued my Initial
Review Order dismissing all claims against the town of
Branford and the BPD. Doc. No. 9. I permitted, however,
Boudreau's Fourth Amendment excessive force claim and
state law claims of intentional and negligent infliction of
emotional distress to proceed against the individual BPD
officers and DHS agents. Id. I also permitted his
state law assault claim to proceed against one of the BPD
officers, Officer Amasino. Id.
October 16, 2017, Boudreau filed an amended complaint (Doc.
No. 22-1) limiting his claims to those I permitted in the
Initial Review Order. In his amended complaint, he brings
claims against the five BPD officers: Officer Luigi Amasino,
Sergeant Konesky III, Sergeant Eula, Officer Kaufman, and
Officer Carney (collectively “the BPD
defendants”); and the four DHS agents: Agent Doug
Smith, Agent James Bentz, Agent David Riccio, and Agent
Brendan Cullen (collectively “the federal
defendants”), in their individual capacities for
damages. On December 11, 2017, Boudreau stipulated to the
dismissal with prejudice of all claims against the BPD
defendants. Stipulation of Dismissal, Doc. No. 39. Thus, the
only remaining claims are those brought against the federal
defendants in their individual capacities for excessive
force, intentional infliction of emotional distress, and
negligent infliction of emotional distress.
December 4, 2017, the federal defendants moved to dismiss
Boudreau's claims against them on two grounds. Mot. to
Dismiss, Doc. No. 36. First, they argue that the tort claims
for intentional and negligent infliction of emotional
distress should be dismissed for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) because Boudreau has
not sued the United States under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b), nor has he
sued them in their official capacities. Defs.' Mem. in
Supp. of Mot. to Dismiss (“Defs.' Mem.”),
Doc. No. 36-1 at 3. Second, they argue that the excessive
force claim should be dismissed under Fed.R.Civ.P. 12(b)(6)
for failure to state a claim because (1) two of them, Smith
and Bentz, had no personal involvement in Boudreau's
arrest, (2) they did not utilize excessive force against
Boudreau and had no realistic opportunity to prevent the
alleged use of excessive force, and (3) they are entitled to
qualified immunity. Id. at 4.
counters that his case complies with the principles of the
FTCA, and therefore, I can exercise jurisdiction over the
tort claims. Pl.'s Resp. to Defs.' Mot. to Dismiss
(“Pl.'s Mem.”), Doc. No. 43 at 32-34. He
acknowledges, however, that if I disagree with his
jurisdictional argument, I should dismiss the tort claims and
allow the case to proceed on the excessive force claim.
See Id. at 34. Boudreau argues that dismissal of the
excessive force claim is improper because the federal
defendants are essentially asking me to weigh the evidence
and evaluate the merits of his claim. Id. at 35. For
the following reasons, the federal defendants' Motion to
Dismiss (Doc. No. 36) is GRANTED in part and DENIED
Standard of Review
motion to dismiss for lack of subject matter jurisdiction,
pursuant to Rule 12(b)(1), considers whether the court lacks
constitutional authority to adjudicate the suit.”
Elliot v. United States, 2007 WL 2022044, at *1 (D.
Conn. Jul. 6, 2007). Although I must accept as true all
material facts in the complaint, I cannot draw from the
complaint “inferences favorable to the party asserting
[jurisdiction].” Id. (quoting Shipping
Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.
1998)). As the party asserting jurisdiction, Boudreau bears
the burden of proving by a preponderance of the evidence that
I have jurisdiction over his claims. See id.;
Allegrino v. Sachetti, 2015 WL 3948986, at *2 (D.
Conn. June 29, 2015) (to survive 12(b)(1) motion, plaintiff
must prove by preponderance of evidence that jurisdiction
exists). “Courts evaluating Rule 12(b)(1) motions
‘may resolve the disputed jurisdictional fact issues by
reference to evidence outside the pleadings, such as
affidavits.'” Elliot, 2007 WL 2022044, at
*1 (quoting Zappia Middle East Constr. Co. Ltd. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)).
survive a motion to dismiss under Rule 12(b)(6), “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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when . . . plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant[s] [are] liable for the
misconduct alleged.” Id. The plausibility
standard is not a probability requirement; the complaint must
show, not merely allege, that Boudreau is entitled to relief.
See Id. “Where . . . the complaint was filed
pro se, it must be construed liberally with
‘special solicitude' and interpreted to raise the
strongest claims that it suggests.” Hogan v.
Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
reviewing a motion to dismiss under Rule 12(b)(6), I must
accept as true all of the facts alleged in the amended
complaint and draw all reasonable inferences in
Boudreau's favor. Ashcroft, 556 U.S. at 678;
Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.
2012). This principle does not, however, apply to the legal
conclusions that Boudreau draws in his amended complaint.
Ashcroft, 556 U.S. at 678; Bell Atlantic
Corp., 550 U.S. at 555. “While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations.” Ashcroft,
556 U.S. at 679. In deciding a 12(b)(6) motion, I “may
consider only ‘the facts as asserted within the four
corners of the [amended] complaint, the documents attached to
the [amended] complaint as exhibits, and any documents
incorporated in the [amended] complaint by
reference.'” Allegrino, 2015 WL 3948986,
*3 (quoting McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir. 2007)).
alleges the following facts in his amended complaint. On
December 28, 2015, DHS Agent Smith requested assistance from
the BPD in arresting Boudreau. Am. Compl. ¶ 15. DHS
Agent Smith informed Sergeant Eula of the BPD that he had
obtained Boudreau's GPS location by pinging his cellular
telephone. Id. at ¶ 16. Using that information,
BPD officers located Boudreau's vehicle, which was
unoccupied at the time, in the parking lot of 1060 West Main
Street in Branford. Id. at ¶ 17. The DHS agents
and BPD officers on scene then requested the use of a canine
officer to locate Boudreau. Id. at ¶ 18. A
short time later, BPD Officer Amasino arrived with his patrol
canine named Joker. Id. at ¶ 19. Joker was
fifteen months old at the time and had been certified by the
Connecticut State Police as a patrol dog. Id. at
¶¶ 20, 21. Amasino and Officer Carney permitted
Joker to enter and sniff inside Boudreau's vehicle.
Id. at ¶¶ 23, 26. Meanwhile, BPD and DHS
using cell network technology had triangulated Boudreau's
location to Branford Cue & Brew, a pool hall in Branford.
Id. at ¶ 27. DHS agents and BPD officers
immediately traveled to that location, but Amasino
“still chose to use . . . Joker to track
[Boudreau].” Id. at ¶¶ 28, 29.
arrival, the federal defendants and BPD members Konesky,
Eula, Kaufman, and Carney entered Branford Cue & Brew and
identified Boudreau. Am. Compl. ¶ 31. Boudreau was
immediately handcuffed, searched, and instructed to lean
against a pool table. Id. at ¶¶ 31-32.
Kaufman notified Amasino via radio that Boudreau had been
detained, and Officer Amasino requested that Boudreau remain
at the pool hall until he and Joker arrived. Id. at
¶¶ 32-33. The DHS Agents and BPD members acquiesced
to Amasino's request, and Boudreau remained handcuffed
inside the pool hall for approximately thirty minutes.
Id. at ¶¶ 34-35.
Amasino and Joker arrived at the pool hall, Boudreau noticed
that Joker was not wearing a muzzle, contrary to what was
later reported by the BPD officers. Am. Compl. ¶ 36. The
police body camera video shows that Joker “appeared
confused and . . . did not pull toward [Boudreau] at all . .
. .” Id. at ¶ 37. Amasino asked Carney,
“[w]here is the dude?” and then repeatedly asked
Joker, “[w]here is he?” Id. at ¶
39. The federal defendants and BPD officers then allowed
Joker to approach Boudreau, who was handcuffed. Id.
at ¶ 40. The video shows that Joker at first appeared
unable to locate Boudreau, but Amasino repeatedly asked him,
“[w]here is he buddy?” Id. at ¶ 41.
Carney told Amasino that Joker “look[ed] like he
want[ed] to bite the shit out of
someone.” Id. at ¶ 42.
Joker finally located Boudreau, he nudged Boudreau's legs
with his nose. Am. Compl. ¶ 43. Boudreau noticed that
Joker looked confused and feared having him so close to him.
Id. at ¶ 44. He asked Amasino if Joker was
still in training, to which Amasino responded that he was
not. Id. at ¶ 46. Joker then bit Boudreau on
his left thigh, resulting in two small lacerations above his
knee and “severe pain.” Id. at
¶¶¶ 47, 49, 52. None of the federal defendants
or BPD officers attempted to prevent Joker from approaching
Boudreau. Id. at ¶ 48. Amasino immediately
removed Joker from the vicinity of Boudreau but did not
inform any of the other officers or agents on scene that
Boudreau had been bitten. Id. at ¶¶ 54,
told BPD Officer Kaufman that Joker had bitten him and that
he was in pain. Am. Compl. ¶ 59. However, the video
shows that “none of the officers appear[ed] at all
concerned that [Boudreau] was bitten, and at times, they
laugh[ed] and joke[d] about it.” Id. at ¶
60. When Kaufman notified Amasino that Joker had bit
Boudreau, Amasino replied, “I don't give a
fuck.” Id. at ¶ 61. He also referred to
Boudreau as the “fucking guy” and said
“good dog” to Joker. Id. at ¶¶
62-63. Amasino instructed Kaufman to take photographs of
Boudreau's injury. Id. at ¶ 64. Afterward,
officers escorted Boudreau outside to the parking lot of the
pool hall, where Amasino offered him medical assistance.
Id. at ¶¶ 67-69. Boudreau declined medical
assistance because he was afraid of sustaining additional