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Andrew Applewhaite v. Matthew Shinton

May 15, 2012

ANDREW APPLEWHAITE, PLAINTIFF,
v.
MATTHEW SHINTON, ET AL., DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Andrew Applewhaite, proceeding pro se, originally filed suit in the Small Claims and Conciliation branch of the Civil Division for the Superior Court of the District of Columbia, alleging he was falsely arrested for threatening then District of Columbia Mayor Adrian Fenty. Over the course of three complaints, Plaintiff named Matthew Shinton, Luann Winston, Erin Walsh, Gail Bolsover, and Alan Boyd as Defendants. This Court subsequently dismissed the claims without prejudice as to Defendants Walsh, Bolsover, and Boyd. Presently before the Court is Defendant Shinton's [15] Motion to Dismiss, or in the Alternative, for Summary Judgment and [20] Motion for Leave to File a Reply, Nunc Pro Tunc ("Def.'s Mot. for Leave"). Defendant's motion to dismiss is now fully briefed and ripe for adjudication. Plaintiff did not consent to Defendant's motion for leave to file, but did not file an opposition. Def.'s Local Rule 7(m) Certif., ECF No. [21-2]. For the reasons stated below, Defendant's [20] Motion for Leave to File a Reply, Nunc Pro Tunc is denied and Defendant's [15] Motion to Dismiss, or in the Alternative, for Summary Judgment is GRANTED. The Complaint is DISMISSED WITH PREJUDICE as to Defendants Shinton and Winston.

I. BACKGROUND

During the summer of 2009, Plaintiff was arrested and charged with threatening now-former District of Columbia Mayor Adrien M. Fenty. Fed. Defs.' Mot. to Dismiss Ex. 3 (Compl.) at 1. On August 25, 2009, Plaintiff was found guilty on one count of misdemeanor attempted threats to do bodily harm, and sentenced to 45 days imprisonment and one year of probation. United States v. Applewhaite, No. 2009 CMD 014017, Sentence (D.C. Sup. Ct. Aug. 25, 2009). Superior Court Judge Anthony C. Epstein suspended Plaintiff's term of imprisonment, and barred Plaintiff from having any contact with Mr. Demound Lewis and Ms. Luann Winston. Id. The District of Columbia Court of Appeals upheld Plaintiff's conviction upon direct appeal, and Judge Epstein rejected Plaintiff's request for a reduction of his sentence. Id. at Appeal Affirmed (D.C. Sup. Ct. May 11, 2010); id. at Order (D.C. Sup. Ct. June 16, 2010).

Plaintiff initially filed suit on October 15, 2009, alleging District of Columbia Metropolitan Police Department Detective Matthew Shinton falsely arrested Plaintiff in June of 2009 for writing a threatening letter to Mayor Fenty. Compl. at 1. Defendant further alleged that Luann Winston, an Assistant Manager with the District of Columbia Housing Authority, falsely identified the handwriting in the letter as belonging to Plaintiff. Id. The Complaint named Detective Shinton, Luann Winston, and Erin Walsh of the United States Attorney's Office, as defendants. Id. Four days later, Plaintiff filed an amended complaint including identical factual allegations, but adding Alan Boyd of the United States Attorney's Office and Gail Bolsover, an United States Postal Inspection Service Analyst, as defendants. Fed. Defs.' Mot. to Dismiss Ex. 4 (First Am. Compl.) at 1. On November 6, 2009, Plaintiff filed the operative complaint, adding the allegation that Luann Winston "saw [Plaintiff] do nothing." Fed. Defs.' Mot. to Dismiss Ex. 5 (Second Am. Compl.) at 1. Defendants Walsh, Boyd, and Bolsover (collectively the "Federal Defendants") removed the case to this Court, and moved to substitute the United States as the sole Federal Defendant pursuant to 28 U.S.C. § 2679(d)(1). Notice of Removal, ECF No. [1], at ¶ 3.

Upon removal, the Federal Defendants moved to dismiss Plaintiff's Second Amended Complaint, alleging Plaintiff failed to present his claim to the relevant federal agency as required by the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The Court (per Judge Ricardo M. Urbina) substituted the United States as the sole Federal Defendant and granted the motion, dismissing Plaintiff's claim as to the United States without prejudice. 8/5/2010 Order, ECF No. [8]. Detective Shinton subsequently moved to dismiss the complaint.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(5)

Pursuant to Federal Rule of Civil Procedure 4(e), the plaintiff may serve an individual defendant within a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...


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