DECISION and ORDER I. INTRODUCTION This civil rights action is brought under 42 U.S.C. §1983 and New York State common law. See generally First Amended Complaint (“FAC”), Dkt. 10. Plaintiff James Jackson asserts claims of Fourth Amendment excessive force and state common law assault and battery. See id. The claims are based on allegations that a police officer’s K-9 twice bit Plaintiff while he was restrained and not offering any resistance or threat to the police. See id. Defendants County of Ulster and Joshua Caliendo move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the FAC in its entirety. Dkt. 11. Plaintiff opposes the motion, Dkt. 13, and Defendants file a reply. Dkt. 16. The Court heard oral arguments on the motion on July 13, 2022, at which time the Court reserved decision. For the reasons that follow, the motion is denied. II. STANDARD OF REVIEW In addressing a motion pursuant to Rule 12 (b)(6), the Court must accept as true the factual allegations in the FAC and draw all reasonable inferences in Plaintiff’s favor. Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive the motion, the FAC must plead enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the factual content pleaded allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). III. BACKGROUND The following facts are taken from the FAC and are deemed to be true for purposes of this motion. During the early morning hours of July 18, 2021 in New Paltz, New York, Plaintiff was looking for his friend who was going to drive him home to Middletown, New York. FAC 7. While he was searching for his friend in the vicinity of Chase Bank, Plaintiff was physically accosted by two strangers, who apparently mistook him for someone else. Id. 8. Plaintiff was punched and taken to the ground. Id. While he was on the ground, Plaintiff was pepper-sprayed by a Town of New Paltz police officer. Id. 9. While he was temporarily blinded, Plaintiff was detained by police officers, including Defendant Caliendo, an Ulster County Sheriff’s Deputy. Id. 10. Plaintiff was then searched, handcuffed behind his back, and walked toward a patrol car by two police officers. Id. 11. Plaintiff was not violent and did not threaten any violence, nor was he carrying a weapon of any sort. Id.
12, 13. While Plaintiff was still handcuffed behind his back and being walked to a patrol car by two officers, a police K-9 handled by Deputy Caliendo bit Plaintiff on his right leg, causing him to fall to the ground. Id. 14. While Plaintiff was still handcuffed with his hands behind his back and lying face down on the ground, Deputy Caliendo’s K-9 bit Plaintiff’s right leg again and held the bite, causing Plaintiff to suffer excruciating pain. Id. 15. At no time after he was detained and before he was bit by the police K-9 did Plaintiff pose any threat to any police officer or anyone else. Id.
