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Edwin Creecy v. District of Columbia et al

March 31, 2011

EDWIN CREECY, PLAINTIFF,
v.
DISTRICT OF COLUMBIA ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Edwin Creecy ("Creecy") brings this action against the District of Columbia, two officers of the D.C. Metropolitan Police Department ("MPD"), and a third individual for injuries Creecy allegedly suffered when he was arrested and subsequently prosecuted for actions that occurred one morning in and outside a house owned by his mother in the District of Columbia. The individual defendants are Officer Carl Jackson ("Jackson"), Officer G. Walker ("Walker"), and William Killibrew ("Killibrew"). Defendants Walker and Killibrew have not yet entered appearances. Creecy has filed a [18] Motion for Reissuance of Summons indicating that his attempts to serve Walker have thus far been unsuccessful; the Court shall grant Creecy's motion to have the summons reissued. According to the proof of service filed with the Court, Defendant Killibrew was served on August 7, 2010. Because he has failed to respond to the Complaint, the Court shall order Creecy to move for the entry of default as to Killibrew and, if appropriate, seek a default judgment.

Defendant District of Columbia has timely filed a [9] Motion to Dismiss, to which Creecy has filed an opposition, and the District of Columbia has filed a reply. The Clerk of the Court entered default against Defendant Jackson for failure to timely respond to the Complaint. Jackson, who is represented by the same counsel as the District of Columbia, has filed a [22] Motion to Set Aside Default on the grounds that his name was inadvertently omitted from the District of Columbia's motion to dismiss and he has a meritorious defense to this action. "The court may set aside an entry of default for good cause." Fed. R. Civ. P. 55(c). In exercising its discretion under Rule 55(c), the Court should consider "whether the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense was meritorious." Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980). Creecy opposes Jackson's motion only on the ground that the District of Columbia does not have standing to file motions or plead on Jackson's behalf. However, Jackson is not required to maintain separate counsel, and the Court accepts the Motion to Set Aside Default as appropriately authorized by Jackson. Because Creecy has not presented any valid grounds to defeat Jackson's motion or shown that he will be prejudiced by setting aside the default, the Court shall grant Jackson's [22] Motion to Set Aside Default. See also Jackson v. Beech, 636 F.2d 831, 832 (D.C. Cir. 1980) ("[S]trong policies favor the resolution of genuine disputes on their merits."). Accordingly, the Court shall consider Jackson to have joined the District of Columbia's Motion to Dismiss.

In addition to opposing Defendants'*fn1 Motion to Dismiss, Creecy has filed a [14] Motion for Leave to Amend Complaint. The District of Columbia has filed an opposition to that motion, which also is presumably joined by Jackson. No reply has been filed, and the motion is now ripe for adjudication. For the reasons explained below, the Court shall grant-in-part and deny-in-part Defendants' Motion to Dismiss and deny without prejudice Creecy's Motion for Leave to Amend Complaint.

I. BACKGROUND

The following facts are drawn from allegations asserted in the Complaint, which the Court must accept as true for purposes of evaluating a motion to dismiss.

Plaintiff Edwin Creecy is a resident of Maryland who does business in the District of Columbia. Compl. ¶ 3. On or about May 20, 2010,*fn2 in the morning hours, Creecy and his mother, Sandra Peaches ("Peaches"), were at a house owned by Peaches at 1123 Michigan Avenue, NE in the District of Columbia. Id. ¶ 7. Creecy and Peaches were assisting U.S. Marshals with an eviction of a tenant from the house, a business by the name Root, Inc. Id. Peaches had hired a moving crew to remove the tenant's property from the premises and onto the street, and Creecy was there to help the moving crew. Id. The U.S. Marshals were only at the residence for about an hour, and when they left, there were still several items remaining in the house. Id. ¶ 8. The moving crew had also been paid and left the premises, so Creecy continued, at his mother's request, to remove items from the premises and place them on the street. Id. As this was occurring, Creecy and Peaches noticed several bystanders rifling through the property on the street. Id. ¶ 9. Fearing that some of the more valuable items might be stolen, Peaches asked Creecy to take some of these items, such as a fax machine and copier, back into the house for safekeeping. Id.

While Creecy was in the process of returning items to the house, he was approached by a man, later identified as William Killibrew. Compl. ¶ 10. Killibrew was swinging a long walking stick in the air in a threatening manner, wielding it like a weapon. Id. Killibrew approached Creecy and tapped him on the shoulder, telling Creecy to "get away" and not to touch "his" property. Id. Creecy believed that Killibrew was going to strike him with the cane. Id. Creecy told Killibrew to get away from him and said that if Killibrew hit him with the cane he would be forced to defend himself. Id. Neither Creecy nor Peaches knew who Killibrew was. Id. Creecy did not make any threats or do anything to put Killibrew in fear for his safety. Id. ¶ 11. Peaches, who was watching the events from the steps to the house, came down and told Killibrew that he was not going to "hit my son." Id. ¶ 12. Killibrew did not identify himself. Id. Peaches then told Creecy to leave the items outside and to go back inside the house to clean up and change the locks on the door. Id. ¶ 13. Creecy complied with his mother's instructions. Id. ¶ 14.

As Creecy went back into the house, Killibrew walked away and got on the phone. Compl. ¶ 13. Killibrew made a 911 call to police claiming that Creecy had assaulted him. Id. MPD officers Carl Jackson and G. Walker responded to the call and arrived on the scene. Id. The officers spoke first to Killibrew, who falsely told the officers that Creecy had attempted to assault him and that Creecy was trying to steal his property. Id. Killibrew also told the officers that he worked for Root, Inc. and was there on the company's behalf. Id. The officers then questioned Peaches and told her to open the door to the house so they could search for Creecy. Id. Peaches attempted to explain to the officers what had happened, but the officers ignored her and demanded that she open the door. Id. Peaches complained that the police did not have a warrant and that she would not give them permission to enter the house. Id. At this point, the officers brushed past Peaches toward the house, nearly causing her to fall. Id. One of the officers went into the house, and the other remained outside blocking Peaches from entering the house. Id. Peaches again complained that the officers lacked a warrant, but they slammed the front door in her face. Id. Peaches then knocked on the front door and informed the officers that she was a lawyer and that the officers could not question Creecy without her being present. Id. Officer Walker yelled at Peaches to get away from the door and slammed it in her face. Id.

Inside the house, the officers located Creecy in the front room and proceeded to question him. Compl. ¶ 15. Creecy attempted to explain what had happened, but after a few short moments, the officers grabbed Creecy, threw him up against the wall, and told him he was under arrest. Id. One of the officers grabbed Creecy's right wrist behind his back and yanked it violently and hard up toward the back of Creecy's neck so that it was almost touching his head. Id. Creecy, who was not resisting, heard and felt a "pop," which he later learned was the sound of his shoulder being yanked and dislocated from its socket. Id. The officers then placed handcuffs on Creecy and locked them so tight that Creecy lost the circulation in his hands. Id. One of the officers realized this and recuffed him. Id. Creecy was in tremendous pain during this period. Id. Creecy claims he was cooperative and did not resist arrest. See id. ¶ 66.

The officers confiscated Creecy's personal possessions, including his keys to the house, which they would not turn over to Peaches so that she could lock the house. Compl. ¶ 16. When Peaches later returned to the home, she learned that the former tenant had broken into the house and stolen the new locks that had been purchased for the house. Id. During the transport to the police station, Creecy claims that the officers intentionally tried to cause him more pain by speeding excessively in the police car and then slamming on the breaks at each stop so that Creecy's head would be snapped back and forth against the seat. Id. ¶ 17.

Once at the police station, Creecy complained about his injuries several times. Compl. ¶ 18. He declined to go to the hospital because the officers at the station told him it would delay his release. Id. Creecy was not transported to the central cell block until the next morning and had to spend the rest of the day and evening in the jail in severe pain. Id. During this time, Creecy claims he was not offered food or water. Id. The day after his release, Creecy went to a doctor and had x-rays taken. Id. ¶ 19. The following week, an orthopedic specialist diagnosed him with a separated shoulder, which he did not have before. Id.

Creecy alleges that Killibrew filed a false complaint claiming that Creecy threatened him and stole the property that had been evicted from the house. Compl. ¶ 21. Creecy also claims that officers Jackson and Walker failed to thoroughly investigate the case and filed a false complaint against him. Id. ¶ 20. Creecy was charged with theft and ...


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