Boudreau v. Smith

          RULING ON MOTION TO DISMISS

          Stefan R. Underhill United States District Judge.

         On 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.

         On 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.

         On 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.

         Boudreau 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 in part.

         I. Standard of Review

         “A 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)).

         To 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)).

         When 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)).

         II. Factual Allegations

         Boudreau 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.

         Upon 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.

         When 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^[1] 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.”^[2] Id. at ¶ 42.

         When 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.”^[3] 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, 58.

         Boudreau 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 bodily ...