Judge Reins In Lawsuit Over Police Dog Attack

OAKLAND, Calif. (CN) - A federal judge refused to dismiss claims that a man walking home from work was attacked by a police dog as officers taunted him and drew their guns.

Oakley police officer Roger Canady had allegedly been looking for an armed robbery suspect when he found Daniel Rodriguez walking home from his job as a handyman at a local hotel.

After Canady sicced his police dog on Rodriguez, mauling him with 56 bites, the victim of the robbery revealed that they had the wrong man, according to the federal complaint Rodriguez filed in Oakland.

Rodriguez said he had merely asked why he was being ordered to the ground, but Canady did not respond and instead brought the dog out.

Canady allegedly ordered the dog to attack Rodriguez as the man was kneeling on the ground and with his hands over his head.

Rodriguez named Contra Costa County, the cities of Oakley and Pittsburg and their police departments, and Canady as defendants to his complaint, which alleged excessive force, assault and battery, negligence and intentional infliction of emotional distress.

U.S. District Judge Saundra Brown Armstrong dismissed most of the claims against Pittsburg without leave to amend Tuesday.

Though Armstrong found that Rodriguez can pursue municipal liability claims against the city of Pittsburg under the 1978 Supreme Court decision Monell v. Department of Social Services of N.Y., she said the Pittsburg Police Department is not a proper party for a claim under Section 1983 of federal civil rights law.

Rodriguez does not have a First Amendment case against Pittsburg because his rights were allegedly trampled by Canady, who is an officer for the city of Oakley.

The Fifth Amendment claims do not apply meanwhile because the defendants are not federal actors. Likewise Rodriguez's Eighth Amendment claim "only applies to excessive force claims brought by convicted inmates," which is not the case here.

Armstrong also found that Rodriguez improperly predicated his excessive force claim on the due process clause of the 14th Amendment, rather than solely under the Fourth Amendment.

As to the claims for assault and battery, emotional distress and negligence, the judge found that public entities are immune from such common law torts.

Rodriguez additionally failed to show that his race played a role in the alleged excessive force, according to the 12-page decision.

Pittsburg may be liable, however, under the Bane Act, which covers suits against people who use threats, intimidation or coercion to interfere with the exercise of constitutional rights.

"The complaint alleges that the officers drew their guns, taunted [plaintiff], and called him insulting names while shouting at him to remain on the ground as he was being attacked by the police dog," Armstrong wrote. "The combination of these facts is sufficient to show the use of threats, intimidation or coercion."

Rodriguez himself conceded that he does not have a case for punitive damages, so the judge dismissed it with prejudice.

Armstrong gave Rodriguez 21 days to amend his complaint.

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