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Holmes v. Bivins

United States District Court, N.D. Georgia, Atlanta Division

August 27, 2019

Craig Holmes, Plaintiff,
v.
M. Bivins, Defendant.

          OPINION & ORDER

          MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

         This 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.)

         I. Background

         In 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. ¶ 8.)

         On 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.)

         Defendant 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.)

         Plaintiff 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.)

         In 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.)

         In 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.)

         In 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.)

         In a 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.)

         Plaintiff 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.

         In June 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.)

         II. ...


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