Full opinion text
MEMORANDUM OPINION AND ORDER WALTER S. SMITH, JR., District Judge. Plaintiffs bring this action pursuant to the provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., 42 U.S.C. §§ 1988 and 1985(3), and pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiffs additionally assert claims under RICO and Texas state law. The Defendants have moved to dismiss many of Plaintiffs’ claims and for summary judgment. After reviewing the parties’ motions and briefs, the Court has determined that the Defendants’ motions are partially meritorious and should be partially granted. I. BACKGROUND Plaintiffs’ claims arise out of the tragic events which occurred at the Mount Car-mel religious center outside of Waco, Texas. Many of the underlying facts are not disputed, and have been widely publicized in the media and during various Congressional hearings. For background purposes, the Court will begin with a brief history of the Branch Davidians. In the 1930’s, a splinter group of the Seventh Day Adventist Church, known as the Branch Davidians, re-located to Waco, Texas from California under the guidance of a self-styled prophet named Victor Hou-teff. Houteff s wife Florence assumed the leadership of the sect after his death, and prophesied that the end of the world, as foretold in the Christian Bible’s Book of Revelation, would commence on April 22, 1959. Her prediction was unfulfilled, and many members abandoned the group. A small group of followers remained in Waco under the leadership of Benjamin Roden, who was succeeded by his wife, Lois. The group eventually moved out of the Waco city limits and established a commune-type settlement, known as Mount Carmel, near the small community of Elk. A young man named Vernon Howell, who later changed his name to David Ko-resh (“Koresh”), joined the group in 1984 and soon became embroiled in a struggle for leadership with Lois Roden’s son, George (“Roden”). It was during this period that the 24-year-old Koresh married his legally acknowledged wife, a 14-year-old girl by the name of Rachel Jones, the daughter of Perry Jones who was a prominent member of the sect. In 1985, Ko-resh and his followers were ejected from Mount Carmel at gunpoint. Koresh led them to the Angelina National Forest near Palestine, Texas, where they lived in plywood boxes, tents and converted school buses. During this period, Koresh declared himself a religious leader and prophet, preaching his own alleged divinely revealed interpretation of the Seven Seals in the Book of Revelation. While Koresh’s religious teaching did not focus on the “Golden Rule,” it did focus on para-military training. As he repeatedly told his followers, “You can’t die for God if you can’t kill for God.” Koresh armed his followers and led them on a raid of the Mount Carmel complex in 1987. Roden was injured during the resulting shoot-out, and Koresh and his followers were arrested and tried for attempted murder. All of Koresh’s followers were acquitted, while the jury was unable to reach a verdict as to the charges against Koresh. Subsequent to the trial in 1989, Roden was arrested in Odessa, Texas for murder in an unrelated case. He was tried and found not guilty by reason of insanity, and was committed to a state mental hospital. Koresh was then free to set himself up as undisputed leader of the Davidians at Mount Carmel. In 1990, he legally changed his name to David Koresh after another revelation from God. He also began recruiting new members in other American cities, as well as in Australia and Great Britain. The ramshackle outbuildings that once made up the Mount Carmel community were consolidated into a large complex, which included living quarters, a chapel, a gymnasium, as well as look-out towers and an armory. The fort-style building, referred to in later press reports as the Compound, was a reflection of Ko-resh’s apocalyptic mentality and preaching' — -the end of the world was near and would be brought about by “the Beast” or “the Babylonians,” which he identified as agents of the Government, particularly the Federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”). Another part of Koresh’s philosophy was his belief that as the new Messiah, all women belonged to him, including the wives and daughters of his male followers. Allegations of child-abuse arose when Ko-resh’s custom of “marrying” girls as young as twelve was revealed during a child custody hearing in Michigan involving one of his followers, Sherri Jewell. These charges attracted the attention of the media, both foreign and domestic. The Waco Tribune-Herald (the “Waco Trib”) began an in-depth investigation of the cult, which came to the attention of the ATF. The ATF had other reasons for investigating Koresh and his followers, having received information that the inhabitants of the Compound were involved in the manufacture and distribution of illegal weapons, including machine guns and hand grenades. One report came from United Parcel Services (“UPS”) that suspicious deliveries had been made to persons residing at the Compound, including over $10,-000 in firearms, inert grenade casings, a substantial quantity of black powder, and explosives. Other reports indicated that residents at the Compound were constructing what appeared to be a barracks-type cinder-block structure, had buried a school bus to use as a firing range and a bunker, and were stockpiling arms and other weapons, including .50-caliber weapons. Further investigation revealed that Koresh was also obtaining numerous kits which could be used to illegally convert semiautomatic weapons to fully automatic. Such information was obtained from firearms dealers with whom Koresh had dealt, former members of the Church, and family members of some of the then-current residents, some of whom are now Plaintiffs in this case. Comments made by Koresh to a number of people hinted at his dangerous and violent propensities. He stated to a child protective case worker investigating reports of child abuse that his time was coming to be revealed as a messenger and what would follow would make the Los Angeles riots pale in comparison. In addition to the increased trading in weapons, Koresh announced to his followers that the world would end before Passover of 1993. His philosophy and teachings made clear that such an end would come at the hands of “the Beast.” As part of its investigation, the ATF set up an undercover house near the Compound. The house was manned by ATF agents posing as students at the nearby Texas State Technical College, including Defendant Robert Rodriguez. Over the next few months, the undercover agents attempted to infiltrate the compound by attending Koresh’s Bible study groups. The Davidians, however, never believed the agents were merely college students because they were too old and drove expensive cars. During December 1992, the ATF instituted plans to obtain and execute an arrest warrant for Koresh and a search warrant for the Compound. The planning and execution of the raid were in the hands of Defendant Phillip Chojnacki (“Chojnacki”) (the Incident Commander) and his immediate subordinate Defendant Chuck Sarabyn (“Sarabyn”) (the Tactical Coordinator). The operation was code named “Trojan Horse” (with an action code of “Showtime”) and revolved upon a plan to conduct a “dynamic” entry into the Compound, which entailed surrounding the facility and entering with a strong show of force. The plan depended heavily on the element of surprise for its success in order to reduce, or prevent, the possibility of injuries to those involved — Davidians as well as agents. Defendant Stephen Higgins (“Higgins”), the ATF Director, ordered the field commanders to cancel the operation if they learned that the secrecy of the raid had been compromised. One other consideration asserted by Plaintiffs as justification for the raid is that the ATF was facing budget scrutiny and needed a successful, high-publicity operation to warrant its continued existence. In February, 1993, ATF representatives met with officials at the Waco Trib to request that the newspaper delay publication of its series on Koresh because of the pending criminal investigation and proposed warrant execution. The agency was concerned that publication of the articles on Koresh would upset him and possibly cause him to increase patrols and security around the Compound. However, ATF refused to reveal the date of the proposed raid, and the Waco Trib declined to delay publication. ATF agents also met with Rural Metro Ambulance Service in order to have ambulance service available, if necessary, on the day of the raid. Through either the ambulance service, local law enforcement, or ATF itself, news of the proposed raid was leaked to the press. The raid was originally scheduled to occur on Monday March 1, and the ATF agents assigned to carry out the raid gathered the week before at Fort Hood to train for execution of the arrest and search warrants. On Thursday, February 25, Chojnacki obtained under seal from United States Magistrate Judge Dennis Green an arrest warrant for Koresh and a search warrant for the Mount Carmel premises, alleging violations of federal firearms laws. On the 26th, the Waco Trib informed ATF that publication of the Koresh series would begin the next day — Saturday, February 27. After learning of the newspaper’s decision to run its story on Saturday, ATF changed the date of the raid to Sunday, February 28. The ATF agents involved learned of the change that day. On Saturday, February 27, the first article in the “Sinful Messiah” series appeared in the Waco Trib, and a Trib reporter received a tip that the raid had been moved from Monday, March 1 to Sunday, February 28. Similar information was passed to a local television station (KWTX-TV). Both the newspaper and KWTX-TV then made plans for various personnel to be at the Compound on Sunday morning. Defendant Rodriguez went to the Compound on Saturday to ascertain whether the article had agitated Koresh or caused any increase in security among the Davidi-ans. Rodriguez spent most of the day in the Compound. Koresh was upset about the article and told the other Davidians that the authorities would be coming. When Rodriguez reported to Sarabyn, he was instructed to return to the Compound on Sunday morning to make sure everything was still normal but to leave by 9:15 а.m. At approximately 5:00 a.m. on Sunday, February 28, the ATF agents íeft Fort Hood for the Bellmead Civic Center (the “staging area”), arriving between 7:30 and 8:00 a.m. Gathering at a different location were various media representatives from both the Waco Trib and KWTX-TV, who arrived at the Compound before the ATF. At one point, there were approximately ten news representatives in four vehicles driving by the Compound, which, because of its rural location, rarely saw such traffic. One cameraman from KWTX became lost, and asked an individual in a rural mail carrier’s car for assistance. The cameraman, who was wearing a KWTX-insignia jacket and identified himself as a KWTX cameraman, indicated he was looking for “Rodenville” because some sort of raid was about to occur. The mail carrier turned out to be David Jones, son of Perry Jones and brother of Koresh’s legal wife, who drove directly to the Compound after his conversation with the cameraman. Defendant Rodriguez testified at the criminal trial that he returned to the Compound pursuant to Sarabyn’s instructions. He carried with him a copy of the Sunday edition of the Waco Trib, which contained the second installment of the Sinful Messiah series. Conditions inside the Compound were no different than when he had left the evening before. When he showed Compound members the article, they laughed. While Rodriguez was talking with Koresh, they were interrupted by Perry Jones. When Koresh returned after allegedly taking a telephone call, he was nervous and shaking. He told Rodriguez, within hearing of Graeme Craddock, that the ATF and National Guard were coming and said, “They got me once, they’ll never get me again.” Koresh then walked over to the window and looked straight at the undercover house. He turned to Rodriguez and said, “They’re coming, Robert. The time has come.” Rodriguez left the Compound shortly after 9:00 a.m. and returned to the undercover house. He reported to Defendant James Kavanagh, who was in charge of that location on the morning of the raid, and Sarabyn, who was at the staging area, that Koresh was agitated and knew that the ATF and National Guard were coming. Sarabyn conferred with Chojnacki and Defendant Ted Royster and decided that the raid should go forward. Sarabyn and others began to hurry the agents, informing them that Koresh knew they were coming. The agents boarded two cattle trailers and left for the Compound. The agents on the ground were to be supported by helicopters on loan from the Texas National Guard. The use of the National Guard was approved by the Governor of Texas, Ann Richards. Inside the Compound, Davidians gathered firearms and donned black clothing and ammunition-holding vests. The confrontation with “the Beast” was at hand. The cattle trailers stopped in front of the Compound’s main building. What followed next is hotly disputed, although various Branch Davidians were convicted of manslaughter as a result of their actions. Gunfire erupted, which resulted in the deaths of four ATF agents and five Branch Davidians. Numerous others, both agents and Davidians, sustained gunshot and shrapnel-related injuries. Although Koresh was seriously injured, he subsequently recovered. In a separate confrontation, ATF agents securing the perimeter of the Compound encountered Branch Davidians Woodrow Kendrick, Norman Allison and Michael Sehroeder, who were attempting to gain entrance to the Compound to assist their comrades. In an exchange of gunfire, Michael Sehroeder was killed. After ATF withdrew, the FBI assumed control of the situation. Defendant Jeffrey Jamar, Special Agent in Charge of the San Antonio, Texas field office, was placed in charge. Thus began a 51-day siege during which the FBI used various tactics to coerce the Davidians into surrendering peacefully. In addition to using skilled negotiators to personally converse with Koresh, the FBI employed such tactics as bombarding the Compound with annoying music, noises, and bright lights, as well as cutting off the electricity. The FBI additionally refused to allow Davidians to speak with family members on the outside or to allow family members to enter the Compound. The Plaintiffs assert that the FBI also used various methods to prevent any of those in the Compound from leaving other than in an approved manner through the use of discouraging gunfire and flash-bangs. A number of law enforcement agencies assisted in securing the Compound, and the Army loaned equipment to the FBI to assist in security, including armored vehicles to patrol the perimeter. During the first few days of the siege, a number of Davidians left the Compound, including many of those children who were not fathered by Koresh. The adults who emerged were taken into custody. While a few were released, others were held as material witnesses or to face criminal charges. The first two elderly women to exit the Compound were inexplicably held on charges of first degree murder, although the charges were subsequently withdrawn. After no further Davidians surrendered, the FBI tactics escalated, including using the armored vehicles to destroy automobiles and go-carts located close to the Compound. In its negotiations, the FBI did not take advantage of the services of outside experts in religion or behavioral sciences. Koresh promised to leave the Compound on a number of occasions if specific demands were met, including the broadcasting of his views and philosophy on a local Christian radio station. Although these demands were met, he failed to surrender and demanded additional concessions. The FBI agreed to allow attorneys Dick DeGuerin and Jack Zimmerman to enter the Compound in an effort to end the siege peacefully. Koresh again did not surrender, but demanded additional time while he completed his written interpretation of the Seven Seals. With no definite time frame for Koresh’s completion of his work, and because of his previous broken promises to surrender, the FBI made the decision to attempt to force the Davidians from the Compound by the use of tear gas. The plan was presented to and approved by United States Attorney General Janet Reno, who is also a named Defendant. Shortly before 6:00 a.m. on April 19, 1993, the FBI notified the Davidians by telephone that it would begin inserting tear gas into the Compound. Using Abrams tanks and Bradley armored vehicles, FBI agents began firing tear gas rounds into the Compound. At the same time, loud speakers broadcast the message that the FBI was inserting tear gas, that it was not an assault, that the Davidians should not fire on the tanks or fire would be returned, and that the Davidians should surrender and leave the Compound. Sometime during the tear gas insertion, the telephone line into the Compound was severed by one of the armored vehicles. When no Davidians emerged from the Compound, the tanks began ramming the Compound building to insert the tear gas rounds further inside. Still no Davidians left the Compound and the insertion continued. The use of the tanks not only destroyed exterior walls, but caused damage to the interior of the building including smashing some staircases and blocking some interior access, including the doorway that led to the bus buried beneath the Compound. The tear gas attack continued for approximately six hours, but still no Davidians exited the Compound. Shortly before.noon, a fire began in a corner of the Compound. Fire was then detected at two separate locations. Because of the nature of the building and the presence of high winds, the fire quickly spread to all areas of the Compound and an explosion completed the destruction at approximately 12:20 p.m. The local fire department was not permitted to approach the Compound until approximately 12:41, after the building was fully engulfed. Only nine Davidians, all adults, were able to escape from the fire. At least 73 others, including the children, perished. Nearly 300 weapons were found in the remains of the Compound, approximately 46 of which were fully automatic. Also found were approximately 800,000 rounds of ammunition, 4 functional hand grenades, and over 100 practice grenade bodies that had been modified to be functional, but which did not contain a main charge or fusing system. Also discovered were the remains of numerous other weapons, pieces of exploded grenades, and innumerable rounds of expended ammunition. Of those adults who left the Compound on April 19 or earlier, eleven were indicted for their role in the death of the four ATF agents and the illegal conversion of weapons, including Kathryn Schroeder (“Schroeder”), Brad Eugene Branch (“Branch”), Kevin Whitecliff (“Whitecliff’), Clive Doyle (“Doyle”), Jaime Castillo (“Castillo”), Livingstone Fagan (“Fagan”), Woodrow Kendrick (“Kendrick”), Norman Washington Allison (“Allison”), Graeme Leonard Craddock (“Craddock”), Renos Avraam (“Avraam”) and Ruth Ottman Riddle (“Riddle”). Paul Gordon Fatta, who was not in the Compound on February 28, was charged with conspiracy to unlawfully manufacture and possess machine guns and aiding and abetting in the unlawful possession of machine guns. Pursuant to a plea agreement with the Government, Schroeder agreed to testify against her codefendants in exchange for being allowed to plead to a lesser charge. After a six-week trial, the Defendants were acquitted of murdering federal officers, but Branch, Whitecliff, Castillo, Fagan, and Avraam were found guilty of the lesser included offense of voluntary manslaughter. Each was also found guilty of using or carrying a firearm during and in relation to a crime of violence, as were Crad-dock and Riddle. Craddock was additionally found guilty of possession of a hand grenade. Their sentences ranged from 5 to 40 years. II. MOTION TO DISMISS A motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982) quoting 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1357 at 598 (1969). It is well settled that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,46-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Boudeloche v. Grow Chemical Coatings Corp., 728 F.2d 759, 762 (5th Cir.1984); Kaiser, 677 F.2d at 1050. When considering such a motion, the complaint must be liberally construed in the plaintiffs favor, and all facts pleaded in the complaint should be accepted as true. Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.1986). “The question therefore is whether in the light most favorable to Plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5A Wright and Miller, Federal Practice and Procedure, § 1357 at 601. In the context of Defendants’ Motion to Dismiss, the Court has considered the most recent amended complaints filed by the Plaintiffs, including the Second Amended Complaint filed in Brown, et al. v. United States, et al. (“Brown I ”), the Third Consolidated Complaint filed in Andrade, et al. v. Phillip J. Chojnacki, et al., and the complaints in Holub, et al. v. Janet Reno, et al. and Holub, et al. v. United States. The Brown I Second Amended Complaint is included as Attachment C to this Memorandum Opinion. III. SUMMARY JUDGMENT Summary judgment should be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A disputed material fact is genuine if the evidence is such that a jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden to demonstrate the absence of a genuine issue concerning any material fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden can be satisfied by pointing out to the district court that there is an absence of evidence to support an essential element of the non-moving party’s case. Id. Upon such a showing, the burden shifts to the non-moving party to establish that there is a genuine issue. Id. at 324, 106 S.Ct. 2548. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. IV. DISCUSSION A. Wrongful Death/Survival Claims. As previously noted, the Plaintiffs seek monetary damages under Bivens, §§ 1983 and 1985, RICO, and state law. The Plaintiffs consist of those indi-victuals who either left the Compound after the initial ATF raid, escaped from the Compound after the fire, and/or the surviving family members of those who died either in the fire or during the initial raid. However, many of those filing suit are not appropriate Plaintiffs. A determination of who may properly assert claims is dependent upon an analysis of the wrongful death and survival statutes of state law. See Rhyne v. Henderson County, 973 F.2d 386 (5th Cir.1992); Grandstaff v. City of Borger, Texas, 767 F.2d 161 (5th Cir.1985); 28 U.S.C. § 1346(b). Sections 71.004 and 71.021 of the Texas Civil Practice and Remedies Code establish the requirements for wrongful death and survival actions. Claims arising under the statutes are “derivative actions, and condition the plaintiffs ability to recover upon the decedent’s theoretical ability to have brought an action had the decedent lived.” Schaefer v. Gulf Coast Regional Blood Center, 10 F.3d 327 (5th Cir.1994). Section 71.004 provides that a wrongful death action for damages is for the exclusive benefit of the deceased’s surviving spouse, children, and parents. Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.1998). Therefore, those wrongful death claims brought by any relative other than the foregoing are dismissed. Further, a cause of action for wrongful death ceases to exist upon the death of the named beneficiary. See Johnson v. City of Houston, 813 S.W.2d 227 (Tex.App.-Houston [14th Dist.] 1991). Therefore, the wrongful death claims brought by Solomon Malcolm, Jr., as heir to the Estate of Solomon Malcolm, Sr. for the wrongful death of Livingston Alexander Malcolm, and by Gladys Williams, as heir to the Estate of Agatha Myrtle Williams for the wrongful death of Yvette Williams Fagan, are dismissed. Additionally, the “spouse” identified in the wrongful death statute refers to a “legal” spouse. It is undisputed that David Koresh was legally married to Rachel Jones and there was no dissolution of that marriage. The Court takes judicial notice of this public record. Therefore, spousal claims asserted by Robyn Bunds and Dana Okimoto are dismissed. Further, the claims included by the Holub II plaintiffs fail to allege any relationship to the decedents and seek damages only as administrator and/or administratrix of the estates of the decedents. An “estate” is not a party under Texas law and can neither sue nor be sued. Price v. Anderson’s Estate, 522 S.W.2d 690, 691 (Tex.1975). The administrator of an estate may have a survival action, but does not possess an action for wrongful death. See Castleberry v. Goolsby Building Corp., 617 S.W.2d 665, 666 (Tex.1981); Koonce v. Quaker Safety Products & Mfg. Co., 798 F.2d 700, 706 (5th Cir.1986). As the complaint neither asserts claims on behalf of the named Plaintiffs nor alleges that they are the statutory beneficiaries of the decedents, the wrongful death claims in Holub II are dismissed, as are any such claims presented by any other administrator, heir or beneficiary. Additionally, the Texas Survival Statute provides that only those causes of action based upon personal injury to health, reputation or body survive the injured person’s death. § 71.021. Claims based upon purely mental or emotional injury, such as those suffered by the decedents during the FBI “siege” are such claims that do not fall within the statute. See Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 311 (5th Cir.1997). Those claims are, therefore, dismissed. Finally, the estates of a number of the decedents are represented by a number of different administrators, legal representatives, or heirs. As an estate can recover only once, these multiples representatives will be dismissed. Also, the Court is unaware of any theory under which one individual may recover for the personal injuries suffered by another. Therefore, the claims of any individual who is seeking damages for the personal injuries of another, who is still alive, will be dismissed. B. Texas National Guard Defendants. The dispositive motions in this case were filed by the United States, the individual federal defendants, and former Governor Ann Richards. In Brown I, the Plaintiffs named a number of individuals who were identified as members of the Texas National Guard. However, a review of the record reveals that these Defendants have never been served with process, nor is there any indication that summons has ever been issued. Accordingly, Plaintiffs will show cause within ten (10) days from the date of this Order why these Defendants should not be dismissed for failure to be served within the time frame provided by Rule 4(m) of the Federal Rules of Civil Procedure. Failure to respond in a timely manner will result in dismissal of these Defendants. C. § 1985(d). Plaintiffs assert that Defendants conspired against them because of their religious beliefs. In order to state a claim under § 1985(3), a plaintiff must allege: (1) a conspiracy of two or more person [sic]; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Word of Faith World Outreach Center Church, Inc. v. Sawyer, 90 F.3d 118, 124 (5th Cir.1996), quoting Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 757 (5th Cir.1987). An essential element of such a claim is that the conspiracy be motivated by racial animus. Id. See also Green v. State Bar of Texas, 27 F.3d 1083, 1088 n. 8 (5th Cir.1994); Deubert, 820 F.2d at 757; Rayborn v. Mississippi State Bd. of Dental Examiners, 776 F.2d 530, 532 (5th Cir.1985). No such claim is made by Plaintiffs in the present case, and the World Faith Court specifically declined to expand § 1985(3)’s reach to a conspiracy based upon religious beliefs. Accordingly, Plaintiffs’ claims under § 1985(3) are dismissed. D. Texas Constitutional Claims. Although unclear, to the extent Plaintiffs seek recovery under state law for violations of the Texas Constitution, such claims are unavailable under Texas law. See Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir.1993) (under Texas law, there is no state constitutional tort action such as provided under § 1983 or Bivens). See also City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex.1995). Therefore, any claim for damages under the Texas Constitution is dismissed. E. RICO. Initially, the Court notes that Judge Atlas dismissed Plaintiffs’ RICO claims against the United States prior to the time the case was transferred to this division. Plaintiffs present no reason that this Court should revisit this issue. As Judge Atlas noted in her Order, governmental entities “are not capable of forming the criminal intent necessary to support the predicate RICO offenses. See Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992).” Andrade v. Chojnacki, Civil Action No. H-94-0923, Memorandum Opinion and Order dated April 3, 1996, p. 21. Plaintiffs’ claims are equally deficient when it comes to stating a RICO claim against the individual Defendants. Basically, Plaintiffs claim that the Defendants and a number of Government agencies have worked over the years to attempt to persecute various groups because of their political and/or religious beliefs, and that the Defendants have conspired to commit RICO violations. RICO claims require “1) a person who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment, conduct, or control of an enterprise.” Word of Faith World Outreach Center Church, Inc. v. Sawyer, 90 F.3d at 122, quoting In re Burzynski, 989 F.2d 733, 741-42 (5th Cir.1993). See also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (a claim under § 1962(c) requires “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity”). Section 1964(c) provides that a person may assert a private cause of action under RICO if that person was “injured in his business or property by reason of a violation of section 1962 of this chapter.... ” 18 U.S.C. § 1964(c). Because of this clear statutory language, a plaintiff may not recover for personal injuries under RICO. Grogan v. Platt, 835 F.2d 844, 848 (11th Cir.1988). See also Sedima, 473 U.S. at 496, 105 S.Ct. 3275 (“[t]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation”); Schiffels v. Kemper Financial Services, Inc., 978 F.2d 344, 353 (7th Cir.1992); Berg v. First State Insurance Co., 915 F.2d 460, 464 (9th Cir.1990). Therefore, Plaintiffs’ claims under RICO should be dismissed because they identify no injury other than personal injuries. Plaintiffs’ claims also fail because they have failed to include specific facts in their complaints that would establish a violation of RICO. Unlike other claims, a RICO claim must be plead with “specific facts, not mere conclusions, which establish” the elements of a claim under the statute. Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir.1987). The claim must also allege specific facts to demonstrate that the defendant and the RICO enterprise are separate entities. See Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993); Manax v. McNamara, 842 F.2d 808, 811 (5th Cir.1988). In the present case, the Defendants and the alleged RICO enterprise are one and the same — the federal government. Finally, Plaintiffs fail to state a RICO claim if the enterprise has but one goal. Manax v. McNamara, 842 F.2d at 811-12. Without any specific facts, Plaintiffs merely allege that the “Defendants,” unspecified and unnamed, have participated in an “association-in-fact” beginning sometime in the 1960’s, and that the purpose of the association was among other things, (1) the immobilization, repression and elimination of organizations, groups and individuals whose religious, political and other beliefs, practices and activities they oppose, including without limitation, the late Rev. Martin Luther King, the Black Panther party, the Vietnam Anti-War Movement, the Student Free Speech movement, gun groups such as NRA, tax protestors and survivalists, as in the shooting by federal agents at Ruby Ridge, and groups they characterize in derogatory terms as cults, including the General Association of the Branch Davi-dians 7th Day Adventist Church and its members and practitioners, and (2) vindictive and extralegal apprehension, mistreatment, retaliation and punishment in violation of the Constitution and laws of the United States, of organizations, groups and individuals they deem responsible for deaths or injuries to law enforcement officers and employees. Brown Complaint, p. 76. However, Plaintiffs’ complaints lack any specific allegations regarding exactly what illegal racketeering acts the Defendants committed beyond those acts associated with the events at the Mt. Carmel Church. Therefore, Plaintiffs’ complaints are insufficient to establish the pattern of racketeering activity required to establish liability under RICO. Additionally, Plaintiffs’ claims are insufficient to establish the required ongoing criminal activity required by RICO. As previously noted, “racketeering activity” consists of two or more predicate offenses. In order to establish a “pattern” of racketeering activity, a plaintiff “must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” Word of Faith, 90 F.3d at 122, quoting H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Continued criminal activity, or the threat of the same, must be shown by either a “closed period of repeated conduct, or an open-ended period of conduct that ‘by its nature projects into the future with a threat of repetition.’ ” Id. A closed period of conduct may be demonstrated “by proving a series of related predicates extending over a substantial period of time.” An open period of conduct involves the establishment of “a threat of continued racketeering activity.” This may be shown where there exists a “specific threat of repetition extending indefinitely into the future,” or “where it is shown that the predicates are a regular way of conducting defendant’s ongoing legitimate business.” Word of Faith, 90 F.3d at 122 (citations omitted). The allegations of Plaintiffs’ complaints are also insufficient to establish the required continuity of criminal activity; as noted, the specific facts all relate to the isolated events occurring at Mt. Carmel. Accordingly, Plaintiffs’ claims under RICO are dismissed. F. Claims Under § 1983. Title 42, United States Code, § 1983 (“ § 1983”) creates a cause of action against any person who, while acting under color of state law, causes another to be deprived of a federally protected constitutional right. Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.... Section 1983 was promulgated to prevent “... [a government official’s] [misuse of power, possessed by virtue of state law and made possible only because the [official] is clothed with the authority of state law.” Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir.1986). See also Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (8th Amendment); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (14th Amendment); Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986) (14th Amendment). Only two allegations are required in order to state a cause of action under § 1983. “First, the Plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Manax v. McNamara, 842 F.2d at 812. The allegations of Plaintiffs’ complaints center upon actions taken by federal officials pursuant to federal law. Plaintiffs attempt to salvage their § 1983 claims by asserting that the federal officials used various state officials to assist them in the planning and execution of the raid, siege and final assault on the Compound. While a claim may lie under § 1983 against an individual who acts in concert with state officials to deprive another of important federal rights, the determination of whether the conduct of such parties constitutes state action depends upon the specific facts and circumstances surrounding the challenged action. Albright v. Longview Police Department, 884 F.2d 835, 838 (5th Cir.1989) (citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). The typical case raising a state action issue involves a private party’s decisive step allegedly causing constitutional harm to the plaintiff, “and the question is whether the state was sufficiently involved to treat that decisive conduct as state action.” Albright, 884 F.2d at 838, (quoting National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 462, 102 L.Ed.2d 469 (1988)). However, as Defendants note, the converse is not true. A state actor, performing at the behest of federal officials, does not thereby turn a federal action into one under color of state law. While Plaintiffs make the unsupported allegation that unnamed state officers “conspired” with federal authorities, there is no factual allegation that any “conspiracy” was conducted under state law rather than federal law. Further, there is nothing to indicate that the actions taken by the federal actors were at the behest of state officials, or that state officials were involved to such an extent that this federal action should be considered one conducted under state law. While the Texas National Guard may be considered a state actor for purposes of § 1983, the use of its facilities by federal officials does not automatically satisfy the requirement of state action. There is, therefore, nothing in Plaintiffs’ complaints to impute any liability against the Defendants under § 1983. Accordingly, Plaintiffs’ claims under § 1983 are dismissed. As a result, Plaintiffs’ claims under the Fourteenth Amendment are likewise subject to dismissal. The Fourteenth Amendment makes the other amendments to the United States Constitution applicable to the various states. As there is no state action in this case, Plaintiffs’ claims under the Fourteenth Amendment are dismissed. G. Bivens/Qualified Immunity. The remaining claims asserted by Plaintiffs arise under the First, Fourth, Fifth and Eighth Amendments to the United States Constitution. Bivens provides the vehicle for redressing a violation of those rights. Such an action may be maintained only against a federal official acting in his/her individual capacity. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). To the extent Plaintiffs seek relief under Bivens against the United States, any of its agencies, or any individual Defendant in his or her official capacity, such claims are dismissed. A Bivens action is akin to one under § 1983. As with a § 1983 action, an individual defendant is entitled to assert the defense of qualified immunity. Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Qualified immunity is not merely a defense to liability, but a shield from suit. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The determination of whether qualified immunity is applicable to any defendant is a matter that is initially determined by the Court as a matter of law. The issue goes to the jury only if disputed fact issues must be resolved. Hunter v. Bryant, supra. A public official is entitled to qualified immunity if his conduct violates no clearly established statutory or constitutional law. Evans v. Ball, 168 F.3d 856 (5th Cir.1999); Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir.1998). See also Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992). In making this determination, the Court undertakes a two-step analysis. Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir.1992). See also Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). First, the Court determines whether, under current law, the plaintiff has alleged a constitutional violation. Siegert v. Gilley, 500 U.S. at 231-32, 111 S.Ct. 1789; Evans v. Ball, 168 F.3d at 860; Salas v. Carpenter, 980 F.2d at 305. Only if the plaintiff has crossed this threshold, does the Court move to the second stage of the analysis, which requires two separate inquiries: (1) whether the allegedly violated right was “clearly established” at the time of the incident; and, if so, (2) whether the defendant’s conduct was objectively unreasonable in light of the clearly established law. Id.; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir.1998). In making this determination, “the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact.” Hunter v. Bryant, 112 S.Ct. at 537. “If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to immunity.” White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992). The qualified immunity standard is broad enough to encompass mistakes in judgment by protecting “all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 112 S.Ct. at 537, quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). 1. Eighth Amendment. The Eighth Amendment is inapplicable to the present case because its protections do not attach until after conviction and sentence. Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (“Eighth Amendment scrutiny is appropriate only after the [government] has complied with the constitutional guarantees traditionally associated with criminal prosecution”); Johnson v. City of Dallas, 61 F.3d 442, 444 n. 5 (5th Cir.1995) (“It is equally evident that the state does not incur Eighth Amendment liability even where injury occurs as the result of official conduct, unless the individual was being held in custody after criminal conviction”). Even were Plaintiffs to be considered pretrial detainees as a result of the stand-off, their claims still would not arise under the Eighth Amendment. See Baker v. Putnal, 75 F.3d 190, 198 (5th Cir.1996) (“[P]re-trial detainees may not bring a cause of action based on the Eighth Amendment. It protects only those who have been convicted”). Accordingly, Plaintiffs have failed to state a cognizable claim under the Eighth Amendment. 2. First Amendment. Plaintiffs appear to claim that the Defendants violated their First Amendment rights to religious freedom by enforcing various gun control laws against them. They also assert that the actions of the Defendants denied them access to the Courts. A review of the various complaints persuades the Court that Plaintiffs have failed to state a cognizable claim under the First Amendment. An individual’s right to the free exercise of his religious beliefs does not “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The laws enforced against the Branch Davidians in this case dealt with the possession and manufacture of illegal firearms. Such laws apply to all individuals equally, regardless of their religious practices or affiliation. The courts have noted that when the government seeks to enforce a “ ‘valid and neutral law of general applicability,’ the fact that an investigation incidentally targets a specific religious group does not render the investigation violative of the first amendment.” United States v. Allibhai, 939 F.2d 244, 250 (5th Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 967, 117 L.Ed.2d 133 (1992) (citation omitted). Plaintiffs also appear to be asserting that the Defendants have targeted them, and other fundamentalist religious groups, for investigation because of their religious affiliation. As support for this Plaintiffs point to the Randy Weaver case in Idaho. However, Plaintiffs offer nothing to connect their religious beliefs with those of the Weavers other than the stockpiling of guns and ammunition. In this case, it was not the mere collection of guns and ammunition that brought the Davidians to the attention of authorities, but rather the amassing of illegal guns and explosive devices. As noted, Plaintiffs also appear to assert that their right of access to the courts was violated by the Defendants “covering up and otherwise hinderfing] the discovery of facts establishing the liability of the U.S. for the causes of action asserted herein.” Andrade Third Consolidated Complaint, ¶7.26. The First Amendment right of access to the courts protects an individual’s right to petition the government for redress of grievances. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 514, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). This right “assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.” Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). “The right of access, in its ‘most obvious and formal manifestation ... protects one’s physical access’ to the courts.” Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir.1994), citing Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir.1989), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990). Plaintiffs include no allegations that explain how the alleged “cover-up” has hindered them from gaining physical access to any court or court process. Finally, Plaintiffs have presented nothing to the Court to establish that the “right” they identify, to be protected from discovery abuses, was clearly established at the time of the events pertinent to this case. A right is “clearly established” when “its contours are sufficiently clear that a reasonable official would have realized that his conduct violated that right, not simply that the conduct was otherwise improper.” Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir.1994). There is nothing to indicate that the right of access has been expanded to include the discovery abuses claimed by Plaintiffs, as noted by the Foster court. Accordingly, even if Plaintiffs have stated a claim under the First Amendment, the Defendants would be entitled to qualified immunity because the right was not clearly established at the time of the commission of the alleged actions. Therefore, Plaintiffs’ claims based upon the First Amendment will be dismissed. 3. Fourth Amendment. The Fourth Amendment protects citizens from unreasonable searches and seizures. Plaintiffs assert that nearly everything about the Defendants’ behavior during the initial raid, the stand-off and final fire was in violation of the Fourth Amendment. a. Collateral Estoppel. Many of the claims raised by Plaintiffs in relation to the initial raid have already been litigated and are barred by principles of stare decisis, collateral estoppel, and res judicata. Stare decisis is a legal doctrine that means “like facts will receive like treatment in a court of law.” Taylor v. Charter Medical Corp., 162 F.3d 827, 832 (6th Cir.1998), citing Brock v. El Paso Natural Gas Co., 826 F.2d 369, 374 (5th Cir.1987). It is preferred “because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 1977, 141 L.Ed.2d 242 (1998), citing Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). “Under res judicata [also known as claim preclusion], a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Collateral estoppel, or issue preclusion, on the other hand, “is applied to bar litigation of an [issue] previously decided in another proceeding by a court of competent jurisdiction when—but only when—the facts and the legal standard used to assess the facts are the same in both proceedings.” Taylor v. Charter Medical Corp., 162 F.3d 827, 832 (5th Cir.1998). “Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. at 94, 101 S.Ct. 411. Both res judicata and collateral es-toppel “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Id. at 95, 101 S.Ct. 411. Collateral estoppel depends upon three elements: “(1) the issue at stake must be identical to the one involved in the prior action; (2) the issue must have been actually litigated in the prior action; and (3) the determination of the issue in the prior action must have been a necessary part of the judgment in that earlier action.” RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1290 (5th Cir.1995). See also Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir.1995). Collateral estoppel differs from res judicata in that it is an equitable doctrine which should be “applied only when the alignment of the parties and the legal and factual issues raised warrant it.” Id. at 1423, citing Nations v. Sun Oil Co., 705 F.2d 742, 744-45 (5th Cir.1983) (en banc), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 229 (1983). However, mutuality of parties is not a requirement. Allen v. McCurry, 449 U.S. at 94-95, 101 S.Ct. 411. The Supreme Court eliminated such a requirement in applying collateral estoppel to bar relitigation of issues “and has allowed a litigant who was not a party to a federal case to use collateral estoppel ‘offensively’ in a new federal suit against the party who lost on the decided issue in the first case.” Id., at 95, 101 S.Ct. 411. However, “the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to litigate that issue in the earlier case.” Id. Under any of the foregoing theories Plaintiffs’ claims as they relate to the initial raid by the ATF in regard to the search and arrest warrants that were issued are barred. The Defendants at the criminal trial in United States v. Branch, 91 F.3d 699 (5th Cir.1996), cert. denied, 520 U.S. 1185, 117 S.Ct. 1466, 137 L.Ed.2d 681 (1997) fully litigated the propriety of the warrants and their service, including whether or not there was a violation of the “knock and announce” rule. The warrants and the method of service were determined to be lawful. Although not all of the Plaintiffs in this present civil litigation were involved in the previous criminal trial, the legal and factual determinations are equally binding upon.. them. As noted above, res judicata bars relitigation among the same parties and their privies. The Defendants at the criminal trial had an even stronger reason to put the Government’s proof to the test because they were seeking their freedom, not merely money damages. As such, the Plaintiffs may not relitigate these issues in this forum. Even if the propriety of the search and arrest warrants were open to relitigation, a careful review of them reveals that the supporting affidavits contained sufficient probable cause to justify their issuance. The minor defects Plaintiffs identify in the Aguilera affidavit do not effect this determination. Sufficient probable cause would exist even without those statements. Therefore, Plaintiffs have failed to state a claim under the Fourth Amendment based upon the impropriety of the arrest and search warrants issued in the criminal case. The reasons supporting the individual Defendants’ Motion to Dismiss are equally applicable to the United States’ Motion for Summary Judgment as to Plaintiffs’ claim under the FTCA. Defendants argue that all of Plaintiffs’ claims relating to the initial raid are barred by collateral estoppel, res judicata and/or stare decisis because of the criminal proceedings. The Court does not agree that all issues raised by Plaintiffs in relation to the initial raid are barred. Whether excessive force was used is still at issue because a finding on that issue was not necessary to the jury’s verdict in Branch or the Fifth Circuit’s opinion. Plaintiffs’ claims relating to whether the ATF shot at the Davidians indiscriminately and without provocation were not determinations that the jury was asked to make. Additionally, the criminal defendants could have been found guilty of voluntary manslaughter even though they did not initiate the shootout if the jury determined that the force used to repel the ATF assault was greater than was justified under the circumstances. b. Unlawful Seizure/Excessive Force. “Violation of the Fourth Amendment requires an intentional acquisition of physical control.” Brower v. County of Inyo, 489 U.S. 593, 595-97, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989). “A seizure occurs even when an unintended person or thing is the object of the detention or taking....” Id. However, a seizure does not occur unless the individual’s freedom of movement is curtailed by some means intentionally applied by the Government. It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmen-tally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. Id. at 1381 (emphasis in original). A seizure does not occur so long as the individual is fleeing from or resisting authority. See California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). A seizure requires not only that the reasonable person feel unfree to leave, but also that the subject actually yield to a show of authority from the police or be physically touched by the police. Under this test, a police officer who chases a fleeing suspect unsuccessfully has not seized that person. Similarly, an officer who yells “Stop, in the name of the law!” at a fleeing person who continues to flee has not effected a seizure. Tom v. Voida, 963 F.2d 952, 957 (7th Cir.1992). In the instant case, the majority of the Branch Davidians did not submit to a show of authority, but actively resisted being taken into custody. As such, no seizure occurred within the Fourth Amendment during either the initial raid, the stand-off or the final assault, and Plaintiffs have failed to state a claim. Even if the Court were to determine that the Fourth Amendment was applicable to those Davidians who were killed or injured by the ATF on the day of the initial raid, the individual Defendants would still be entitled to qualified immunity. Plaintiffs have not identified any named Defendant as one who either initiated the shooting at the Compound or actually injured any of its inhabitants. Additionally, Plaintiffs’ claims as they relate to the planning of the initial assault, the methods to be used during the stand-off, or the planning of the final assault are not sufficient to state a claim under the Fourth Amendment. The decision to use a “dynamic” entry is not, in and of itself, a violation of the Fourth Amendment. The information available to the ATF, which is contained in the affidavit supporting the warrants, was more than sufficient to justify the use of such an entry by any reasonable law enforcement officer. Finally, none of the Plaintiffs have made any claim that the raid plans called for the ATF agents to shoot the Davidians without provocation. The same is true for Plaintiffs’ allegations in relation to the stand-off and final assault. There are absolutely no specific facts contained in Plaintiffs’ complaints that would suggest that any of the named Defendants planned any activity for the specific purpose of causing harm to the Davidians. Therefore, Plaintiffs have failed to state a claim against any of the individual Defendants under the Fourth Amendment arising out of a claim of an unlawful seizure during the initial raid, the 51-day stand-off, or the final assault. c. Initial ATF Raid/Shooting of Michael Schroeder. A separate shooting incident occurred some hours after the initial raid. During this exchange of gunfire, Davidian Michael Schroeder was killed. Davidians Norman Allison and Woodrow Kendrick, who were accompanying Schroeder in an attempt to enter the Compound, were arrested by ATF agents. At the criminal trial, both Allison and Kendrick were acquitted. The Plaintiffs assert that the death of Schroeder was the result of excessive force and that Defendants are liable under the Fourth Amendment and the FTCA. The Plaintiffs further assert a claim of malicious prosecution and abuse of process