United States District Court, N.D. Georgia, Atlanta Division
OPINION & ORDER
MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE
litigation arose from Plaintiff Craig Holmes's arrest
after Defendant M. Bivins allegedly entered and removed him
from his home. (Dkt. 6 ¶ 1.) Plaintiff dismissed his
claims against two Defendants, Pembrooke Homeowners, Inc. and
Tony Aquila, and only his claims against Defendant M. Bivins
remain. (Dkt. 84.) Plaintiff has moved for default judgment
against Defendant Bivins. (Dkt. 90.)
November 2015, Plaintiff lived in a rooming and boarding
house that Pembrooke Homeowners, Inc.
(“Pembrooke”) operated. (Dkt. 6 ¶¶
5-6.) Plaintiff paid Pembrooke $600 in October. (Id.
¶ 7.) Pembrooke's agents allegedly asked Plaintiff
to leave the boarding house, but Plaintiff refused to do so
until Pembrooke returned his $600 payment. (Id.
November 11, 2015, Plaintiff was in the Pembrooke Townhomes
playing his music very loudly. (Id. ¶ 10.)
Defendant Bivins was allegedly called to the boarding house
to arrest Plaintiff for criminal trespass. (Id.
¶ 12.) Defendant Bivins knocked and demanded that
Plaintiff open his door. (Id. ¶ 13.) Plaintiff
responded that he had a right to stay until Pembrooke
returned his money. (Id. ¶ 14.)
Bivins allegedly obtained the key to the premises from Tony
Aquila, entered Plaintiff's home without a warrant, and
arrested Plaintiff. (Id. ¶ 16.) Defendant
Bivins later served Plaintiff with a warrant for criminal
trespass. (Id. ¶ 17.) Plaintiff asserts that
Defendant Bivins did not tell the magistrate judge who issued
the warrant that Plaintiff was a tenant at the boarding
house, not a guest. (Id. ¶ 18.)
was incarcerated for twenty-one days. (Id. ¶
19.) He was charged with criminal trespass, but the
proceedings against him were eventually dismissed.
(Id. ¶¶ 41-42.)
April 2016, Plaintiff filed his application for leave to
proceed in forma pauperis and his complaint, asserting five
state law claims and four federal claims, under 42 U.S.C.
§ 1983, for violations of the Fourth Amendment. (Dkts.
1, 3.) The Court conducted a frivolity review and dismissed
Plaintiff's federal claims because they failed to state a
claim upon which relief could be granted or were barred by
qualified immunity. (Dkt. 5 at 1, 12.) The Court allowed
Plaintiff to file an amended complaint to address these
issues. (Id. at 12.)
September 2017, the Court ordered Plaintiff to file proof
that service was waived or effectuated on Defendant M.
Bivins. (Dkt. 52.) Plaintiff did so on October 19, 2017.
(Dkt. 58.) His proof of service states Defendant Bivins was
served on October 16, 2017. (Id.)
Plaintiff's amended complaint he asserts § 1983
claims for unlawful search and seizure under the Fourth and
Fourteenth Amendments (Counts 1 and 5); a Fourth Amendment
violation under Franks v. Delaware, 438 U.S. 154
(1978), (Count 6); and malicious prosecution (Count 7).
Plaintiff also asserts state law claims for unlawful search
and seizure in violation Article I, Section I, ¶ XIII of
the Georgia Constitution (Count 2); violation of
Plaintiff's “right of privacy” (Count 3);
wrongful eviction (Count 4); attorneys' fees and punitive
damages (Count 8); and a violation of the Georgia Fair
Business Practices Act of 1975 (“FBPA”) (Count
9). (Dkt. 6.)
second round of frivolity review, the Court dismissed Counts
2 and 8 in the amended complaint, but allowed Counts 1, 3-7,
and 9 to proceed. (Dkt. 8 at 18.)
served Bivins on October 16, 2017. (Dkt. 58 at 1.) Bivins did
not file an answer to Plaintiff's complaint or make an
appearance in this proceeding. In December 2017, Plaintiff
moved for default judgment against Bivins. (Dkt. 72.) The
Court denied Plaintiff's motion because he failed to
first seek an entry of default from the Clerk under Rule
55(a) of the Federal Rules of Civil Procedure. (Dkt. 86.)
Plaintiff then moved for a clerk's entry of default,
which the Clerk entered in May 2019. (Dkt. 89.) Plaintiff has
again moved for default judgment as to M. Bivins. (Dkt. 90.)
Defendant M. Bivins did not respond to the motion.
2018, Plaintiff settled his claims against Defendants Tony
Aquila and Pembrook Homeowners, Inc. and dismissed his claims
against these defendants with prejudice. (Dkts. 83-84.)