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Sergeant Gayle for failure to intervene. Furthermo re, for the
reasons discussed in the preceding section, Gayle i s not
shielded by qualified immunity.
Considering next the § 1983 claim regarding the use of
excessive force, Plaintiff fails to state a claim a gainst Gayle.
Notably, the bystander liability test requires that the
bystander officer witness his fellow officer‘s ille gal act, and
Plaintiff fails to allege that Gayle was present du ring
transport to the jail, or at the jail, during which times
Plaintiff repeatedly voiced her complaints about th e manner in
which she was handcuffed. Accordingly, Gayle‘s motion to
dismiss the portion of Count Seven alleging an exce ssive force §
1983 claim is granted, but Gayle‘s motion to dismis s the portion
of Count Seven alleging a ―bystander liability‖ § 1983 claim
regarding Plaintiff‘s arrest is denied . See id. at 204 n.23
(expressly recognizing that bystander liability is ―applicable
to cases of unjustifiable arrest ‖); Smith v. Ray, 409 Fed. Appx.
641, 648 (4th Cir. 2011) (unpublished) (applying th e bystander
liability test set forth in Randall and finding tha t none of the
―bystander‖ officers could be held liable on the pl aintiff‘s
excessive force claim because they were not ― present to witness
the use of excessive force.‖).
3. § 1983 Claim against the City Defendants
In contrast to Briggs and Gayle, none of the City Jump to an indexed page (39 of 39)