EDWI

N CREECY, Plaintiff,

v. DI STRI CT OF COLUMBIA et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10–841 (CKK)

MEMORAN DUM OP INION (Mar ch 31, 2011) Plaintiff Edwin Creec y

(“Cre ecy”) br ings this ac tion ag ainst the District of Columbia, two office rs of the D .C. Metropolitan Poli ce D epar tment (“MPD”) , and a third individual for injuries Creec y alleg edly suffe red when he w as ar

rested a nd subsequently

prosec uted for a ctions that

occur red one morningin and outside a house owned by his mother in the District of Columbia. The individual defe ndants are Offic er Car l J ackson ( “Jackson”), O ffice r G. Walker ( “Walker” ), and Willi am Killibrew (“ Killibrew”) . Def endants Walker a

nd Killibrew have not y et enter ed appea ranc es. Cree cy

has filed a

[18] Motion for Reissuance of Summons indi cating that his attempts to serve Walker

have thus fa

r bee n unsucce ssful; the Court shall gr ant Cree cy ’s motion to have the summons re issued. Acc ordingto the proof of servicefiled with the Court, Def endant Killibrew wa s serve d on August 7, 2010. Bec ause he has fa iled to respond to the Complaint, the Court shall order Cre ecy

to move for the e ntry

of def ault as to Killibrew and, if appropriate, see k a def ault judgme nt. Def endant District of

Columbi a has timely

filed a [9] Mot ion to Dismi ss, to which Creec y has filed a

n opposition, and the District of Columbia has filed a r eply . The Clerk of the Courtenter ed def ault ag ainst Defe ndant J ackson f or fa ilure to timely

respond to the Complaint. J ackson, who is repre sented by the same c ounsel as the District of Columbi a, has f

iled a [22] Motion to S et Aside De fault on the grounds that his name wa s inadverte ntly omitted from the District of Columbia’s motion to di smiss and he has a me ritorious defe nse to this action. “The court may set aside a

n entry of def ault for g ood cause .” F ed. R. Civ. P. 55(c). In exercisingits discretion under

Rule 55(c) , the Court should consider “ whether the def ault was willful, (2) a

setaside would pre

judice plaintiff, a

nd (3) the a lleg ed def

ense w as meritorious.” Keege l v. Key W est &Caribbean Tradi ng Co. , 627 F.2d 372, 373 ( D.C. Cir. 1980). Creec y opposes J ackson’ s motion only

on the ground that the District of Columbia does not have standingto file motions or plead on Jackson’s beha lf. Howe ver, Jackson is not require d to maintain separa te counse l, and the Court acc epts the Motion to Set Aside Defa ult as appropr iately

authorized by

J ackson. Be cause Creec y

has not prese nted any

valid g rounds to defe at J ackson’ s motion or shown that he will be prejudice d by

setting a side the def

ault, the Court shall g rant Jackson’s [22] Motion to S et Aside De fault. See also J ackson v . Bee ch , 636 F.2d 831, 832 ( D.C. Cir. 1980) (“[S] trong policies favor

the re solution of ge nuine disputes on their merits.”) . Acc ording ly , the Court shall consider Jackson to have joined the District of Columbia’s Motion to Dismi ss. In addition to opposing De fenda nts’ Motion to Dism iss, Creecy has filed a

[14] Motion 1 for L eave to Amend Complaint. The District of Columbia has filed an opposition to that motion, which also is pre sumably joined by J ackson. N o reply

has bee n filed, and the motion is now ripe for a djudication. For

the re asons explained below, the Court shall grant-in- part a nd deny -in-par

t

For the sake of simplicity , the Court shall ref er to District of Columbia and Jackson as 1 “De fenda nts” when c onsideringtheir Motion to Dismi ss. 2Def

endants’ Motion to Dismiss and deny without prejudice Cre ecy ’s Motion for L eave to Amend Complaint. I. BACKG ROUND The followingfac ts are dr awn f rom alleg ations asserte d in the Complaint, which the Court must acce pt as true f or purpose s of eva luating a motion to di smiss. Plaintiff Edwin Creec y

is a reside nt of Mary

land who does business in the District of Columbi a. Compl. ¶ 3. On or a bout May 20, 2010, in the morninghours, Cree cy and his 2 mother, Sandra

Peache s (“Pea ches” ), we re at a house owne d by Peache s at 1123 Michig an Avenue , NE in the District of Columbia. Id. ¶ 7. Cree cy and Peac hes we re a ssisti ngU.S. Marsha ls with an eviction of a te nant from the house , a business by the name Root, Inc. Id. Peache s had hired a

moving c rewto remove the tenant’s pr operty from the pr emises and onto the street, a nd Creec y

was ther e to help the movingcre w. Id. The U.S. Mar shals wer e only at the residenc e for

about an hour , and whe n they left, there wer e still severa l items remainingin the house. Id. ¶ 8. The movingcre w had a lso been pa id and left the pr emises, so Cree cy continued, at his mother’s re quest, to remove items fr om the premises a nd place them on the stree t. Id. As this was occur

ring , Creec y

and Peac hes noticed se vera l by standers r ifling through the prope rty on the stree t. Id. ¶ 9. F earing that some of the more valuable items mig ht be stolen, Peac hes aske d Creec y to take some of the se items, such as a fax machine a

nd copier , back into the house for safe keeping

. Id.

The Court notes that this date c annot possibly be cor rec t beca use it is the same day

that 2 Creec y ’s Complaint was filed with the Court, and Cre ecy later a lleg es that these e vents occ urre d prior to a tria l on March 9, 2010. See Compl. ¶ 21. At this stag e of the litigation, howeve r, the prec ise date of

the eve nts in question is not releva nt. 3Whil e Cree cy was in the proc ess of re turningitems to the house, he wa s approa ched by a man, later identified as William Kill ibrew. Compl. ¶ 10. Killibrew wa s swinginga longwalking stick in the air in a thre ateningmanner , wieldingit like a wea pon. Id. Killibrew appr oache d Creec y and tappe d him on the shoulder, telling Cre ecy to “g et awa

y” and not to touch “ his” proper ty
. Id. Creec y

believed that Killibrew was g oing to strike him with the ca ne. Id. Creec y told Killi brewto ge t away from him and said that if Killibrewhit him wit h the ca ne he w ould be forc ed to def

end himself. Id. Neither

Creec y nor Peac hes knewwho Killibrew wa s. Id. Creec y did not make any

threats or do any

thing to put Killibrew in fe ar f or his safe ty
. Id. ¶ 11. Peac hes, who was w atchingthe eve nts from the steps to the house, c ame down a nd told Killi brewthat he was not g oing to “ hit my

son.” Id. ¶ 12. Killibrew did not identify himself. Id. Peache s then told Creecy

to leave the items outside and to go ba ck inside the house to c lean up a nd chang e the locks on the door. Id. ¶ 13. Cree cy complied with his mother’s instructions. Id. ¶ 14. As Cree cy

went bac k into the house, Killibrew wa lked awa y and g ot on the phone. Compl. ¶ 13. Killi brewmade a 911 call to police c laiming that Cre ecy had assa ulted him. Id. MPD office rs Carl Jackson and G. Walker responde d to the call and a rrived on the scene . Id. The off icer s spoke first to Killibrew, who f alsely told the office rs that Cree cy had attempted to assault him and that Cree cy was try ing to stea l his property

. Id. Killibrew also told the offic ers that he wor

ked for Root, Inc. and w as there on the company ’s beha lf. Id. The off icer s then questioned Peac hes and told her to open the door to the house so they could sea rch f or Cree cy . Id. Peache s attempted to explain to t he off icer s what had ha

ppened, but the of

fice rs ig nored he r and dema nded that she ope n the door. Id. Peache s complained that the police did not have a

war rant a nd that she would not g ive them per mission t o enter

the house. Id. At this point , the

4office rs brushed pa st Peache s toward the house , near ly causing her to fa ll. Id. One of

the office rs went into the house, a nd the other r emained outside bloc king Pea ches f rom enter ing the house. Id. Peache s ag ain complained that the office rs lacke d a wa rra nt, but they

slammed the front door in he r fa ce. Id. Peache s then knocke d on the front door and informe d the offic ers that she wa s a lawyer a

nd that the offic ers c ould not question Creecy without her beingprese nt. Id. Offic er Walker

y elled at Pea ches to g et awa y from the door

and slammed it in her f

ace . Id. Inside the house, the of

fice rs locate d Creec y

in the front room a

nd proce eded to que stion him. Compl. ¶ 15. Cree cy attempted to explain what had happe ned, but af ter a fewshort moments, the office rs grabbe d Creec y , threw him up ag ainst the wall, and told him he wa s under

arr est. Id. One of

the offic ers grabbe d Creec y ’s right wrist behind his back a nd yanked it violently and har d up toward the back of Creec y ’s nec k so that it was almost touching his hea d. Id. Creec y , who was not re sisting, hea rd and f elt a “pop,”which he later lea rned w as the sound of his shoulder beingyanked a nd dislocated fr om its socket. Id. The off icer s then place d handcuf fs on Cree cy

and locke d them so tight that Cree cy lost the circulation in his hands. Id. One of the offic ers r ealized this and rec uffe d him. Id. Creec y was in treme ndous pain during this period. Id. Creec y

claims he wa s cooper ative and did not re sist arrest. See id. ¶ 66. The off icer s confiscated Cree cy ’s per sonal possessions, including his key s to the house, which they

would not turn over to Peac hes so that she c ould lock the house. Compl. ¶ 16. When Peache s later r eturne d to the home, she lea rned that the former

tenant had br oken into the house and stolen the ne w locks that had be en purc hased f or the house. Id. Duringthe transpor t to the police station, Cree cy

claims that the off

icer s intentionally

tried to ca

use him more pain by speedingexcessively

in the police ca

r and the n slamming on the br eaks at eac h stop so that

5Creec y ’s hea d would be snappe d back a nd forth ag ainst the seat. Id. ¶ 17. Once at the police station, Creecy complained a

bout his inj uries seve ral times. Compl. ¶ 18. He declined to g o to the hospital beca use the off

icer s at the station told him i t would delay his relea se. Id. Creec y

was not transpor

ted to the ce ntral ce ll block until t he next morning a nd had to spend the r est of the da y and eve ning in the ja il in severe pa in. Id. Duringthis ti me, Creec y claims he wa s not offer ed food or water
. Id. The da

y afte r his rele ase, Cre ecy

went to a doctor a nd had x-ray s taken. Id. ¶ 19. The f ollowing we ek, an or

thopedic spec ialist diagnose d him with a separa

ted shoulder, whic h he did not have be fore

. Id. Creec y alleg es that Killibrew f

iled a fa lse complaint claimingthat Creec y threa tened him and stole the prope rty

that had bee n evicted f

rom the house. Compl. ¶ 21. Cree cy also claims that office rs J ackson a

nd Walker fa iled to thoroug hly investigate the ca se and f iled a fa lse complaint ag ainst him. Id. ¶ 20. Cree cy was c harg ed with theft a

nd makingthrea

ts, and he wa s acquitted of

both char g es at trial on Ma rch 9, 2010. Id. ¶ 21. II. LEGAL STANDARD Under the Fe dera l Rules of Civil Procedur e, a c omplaint mustcontain “a short and plain statement of the c laim showing that the pleade r is entitled to relief,” Fe d. R. Civ. P . (8)( a), “ in order to ‘g ive the def

endant f air notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)). A lthough “ detailed f actua l alleg ations” ar e not nec essar y to withstand a Rule 12(b)(6) motion to di smiss for failure to state a c laim, a plaintiff must furnish “more than labels and c onclusions” or “ a for mulaic re citation of the e lements of a c ause of action.” Id. “Nor does a c omplaint suffice if it tende rs ‘naked asse rtion[s ]’ devoid of ‘fur ther fa ctual
6enhanc ement.’” Ashcroft v. Iqbal , 129 S.Ct . 1937, 1949 (2009) ( quoting Twombly , 550 U.S. at

557). Rather , a complaint must contain suffic ient fac tual alleg ations that, if acc epted a s true, “state a claim to relief

that is plausible on its face.” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y

when the pla intiff pleads fa ctual conte nt that allows the court to dra w the

rea sonable infe renc e that the de fenda nt is li able f

or the misconduct a lleg ed.” Iqbal , 129 S.Ct

. 1949 (citing Twombly , 550 U.S. at 556). When consideringa motion to dism iss for fa ilure to state a c laim, the court must construe the complaint in a lig ht most favorable to the plaintiff and must ac cept a s true all re asonable fac tual infere nces dr awn f rom well-plea ded fa ctual alleg ations. In re United M ine W orkers of Am. Employe e Be nefit Plans Li tig. , 854 F. Supp. 914, 915 (D.D .C. 1994); see also Schule r v. United States , 617 F.2d 605, 608 ( D.C. Cir. 1979) (“The complaint must be liberally construed in favor of the plaintiff, who must be g rante d the bene fit of all infer ence s that can be derive d from the fa cts alleg ed”) (interna l quotation omit ted). How ever , a plaintiff must provide more than just “a she er possibility

that a def endant ha s acte d unlawfully .” Iqbal , 129 S.Ct . at 1950. When a complaint’s well-ple aded f acts do not ena

ble a c ourt, “dra

w[ing] on its judicial experience and common sense,” “to infer more than the mere possibili ty of misconduct,” the complaint has not shown that the plea der is entitled to re lief. Id. III. DISCUSS ION In his Compl aint, Creec y

asser ts eig ht cause s of ac tion. In Count I , he asse rts a cla im under 42 U .S.C. § 1983 aga inst Defenda nts J ackson a

nd Walker and the District of Columbia, alleg ing that they

violated his rig hts under the F ourth, Fifth, Six th, and Four teenth Amendme nts to the U.S. Consti tution by enter ing his home w ithout a warr ant, ar restinghim without a warra nt
7or proba

ble ca use, and usingexcessive forc e. See Compl. ¶¶ 24-30. I n Count I I , Creec y

asser ts claims for a ssault and/or batter y ag ainst Defe ndants J ackson, Walker , and Killibrew. Id. ¶¶ 31- 36. In Count I I I , Creec y

asser ts a claim for

intentional infliction of emotional distress ag ainst Def endants Jackson, Walker, and Killibrew. Id. ¶¶ 37- 41. In Count I V, Cree cy asser ts a claim for f alse a rre st and/or fa lse imprisonment ag ainst Defe ndants J ackson a nd Walker. Id. ¶¶ 42- 46. In Count V, Creec y

asser ts a claim for

malicious prosec ution and/or abuse of proce ss ag ainst Def endants Jackson and Walker. Id. ¶¶ 47- 52. In Count VI , Creec y claims that the District of Columbi a wa s neg lige nt in failing to a dequate ly train or supe rvise De fenda nts J ackson a

nd Walker. Id. ¶¶ 53- 57. In Count VI I , Creec y claims that the District of Columbia was ne g lige nt in hiring or

reta ining De fenda

nts J ackson a

nd Walker. Id. ¶¶ 58- 63. Finally , in Count VI I I , Creec y asser ts a claim for

neg lige nce a g ainst Defe ndants J ackson a nd Walker. In their Motion to Dismi ss, Defe ndants argue that: (1) Cre ecy has fa iled to assert a

claim for municipal liability

under 42 U .S.C. § 1983; (2) the f acts pled in the Complaint demonstrate that there was proba

ble ca use for the ar rest; (3) the fac ts pled in the Complaint demonst rate that the offic ers use d only

rea sonable for ce; ( 4) Cree cy has fa iled to plead fa cts showingoutrag eous conduct; and ( 5) Cree cy

has fa iled to plead fa cts showingneg lige nce distinct fr om the alleg edly intentional torts. The Court shall addre ss Defe ndants’ ar guments below in the conte x t of ea ch of the leg al claims Cree cy

assets in the Complaint. A. Claims for

False Arrest and False Im prisonment Creec y asser ts both constitut ional and common law c laims for fa lse arr est and fa lse

8imprisonment ag ainst Defe ndants Walker and Jackson. “T he ele ments of a c onstitut ional claim 3 for f alse a rre st are substantially

identical to the ele ments of a c ommon-law fa lse arr est claim.” Scott v. District of Columbia , 101 F.3d 748, 753 ( D.C. Cir. 1996). For either c laim, “[t] he foc al point of the ac tion is t he question whe ther the a rre sting off

icer was justified in ordering the arr est of the plaintiff; if so, the c onduct of the a rre sting off

icer is privilege d and the a ction fails.” Id. (quoting Dellums v. Powe ll , 566 F.2d 167, 175 ( D.C. Cir. 1977)). “[I ]tis a familiar pr inciple that probable cause for a

n arr est and de tention constitutes a valid defe nse to a c laim of false arr est or imprisonment.” Magwood v. Giddings , 672 A.2d 1083, 1086 (D.C. 1996). “Probable cause 4 exis ts where the ar

restingoffice r possesses infor mation ‘sufficie nt to warra nt a prude nt [ person] in believingthat the [suspect has] commit ted or [is] committing an of fense .” United States v. Catlett , 97 F.3d 565, 573 ( D.C. Cir. 1996) (quotingBec k v. O hio , 379 U.S. 89, 91 (1964)). “Probable cause is sy

nony mous with ‘fair pr obability ,’ and it is an objec tive standard r equiring

an ana ly sis of the totality

of the c ircumstance s and the fa cts known to the off icer s at the time of the sea rch.” United States v. J

ackson , 415 F.3d 88, 91 ( D.C. Cir. 2005) (interna l citations omitted). The existence of pr obable c ause a s applied to a pa rticular se t of fac ts is a leg al question. See Ornelas v. United States , 517 U.S. 690, 696-97 (1996); Pitt v. District of

There is “no rea l differ ence as a pr actica l matter betwe en fa lse arr est and fa lse 3 imprisonment.” Shaw v. May D ep’t Stores Co. , 268 A.2d 607, 609 n.2 (D.C. 1970) ( citations omitted). Even if a police off

icer lacke d probable cause for a n arr est, a police office r may defe at a 4 false a rre st claim by

demonstratingthat (1) he believed in g ood faith that his conduct wa s lawful and (2) that this belief was r easona ble. See D istrict of Columbia v. Murphy , 631 A.2d 34, 36-37 (D.C.), aff’d on reh’g , 635 A.2d 929 (D.C. 1993). H oweve r, bec ause Cre ecy does not plead f

acts that clea rly show that Def

endants Jackson and Walker be lieved in g ood faith that their c onduct was law ful, the Court ca

nnot dismi ss Creec y ’s fa lse arr est claims on this basis.

9Columbia , 491 F.3d 494, 502 ( D.C. Cir. 2007).

Gene rally speaking , District of Columbia law provides that a law enf orce ment office r may arr est a pe rson without a war rant only when the of

fice r has pr obable c ause to be lieve either that the per son has committed a fe lony or that the pe rson has c ommitt ed an of fense in the office r’s pre sence . See D.C. Code § 23-581(a )(1) (A)- (B ). I n other wor ds, the District of Columbi a pre serve s the common-law r ule that an of

fice r is not authorized to arre st a suspect based solely

on probable cause that the suspect c ommitt ed a misdeme anor outside the of fice r’s prese nce. See id. § 23-581; Enders v. D istrict of Columbia , 4 A.3d 457, 467 (D.C. 2010). It is unclea r whe ther the F ourth Amendment a lso contains this li mitation, but t he D.C. Circuit has sug g ested that whe re a

constitutional claim for fa lse arr est is asserte d along side a c ommon-law false a rre st claim based on the sa me alleg ations, it is appropriate to ana ly ze both claims under D.C. law. See Sc ott , 101 F.3d at 754 (noting that the D.C. Circuit has not y et addr essed the question of whethe r the c ommon-law pre sence require ment for misdemea nor ar rests applies to § 1983 claims and a

pplying D .C. law to para llel claims for fa lse arr est under § 1983 a nd common law). There fore , the Court shall consider whether , acc ordingto the alleg ations pled in the 5 Complaint, Defenda

nts J ackson a

nd Walker cle arly

had the r equisite probable cause to arre st Creec y without a war

rant. The fa cts pled by

Creec y indicate that pr ior to the arr est, Def endants Jackson and Walker (1) r esponded to a

911 call plac ed by

Killibrew in which he claimed that he had bee n assaulted; (2) a rrived on the scene of the e viction with Creecy inside the house, Peac hes on or ne ar the front steps, and Killibrew’ s proper ty outside; (3) hea

rd fr om Killbrew in person tha t Creec y had tried The Court notes that the pa rties did not addre ss this i ssue in their brief s. 5 10to assault him and steal his proper ty ; and (4) w ere ref

used per mission t o enter

the house to question Creec y . Ba sed on the these fac ts as alleg ed by Creec y , it appear s that J ackson a nd Walker had pr obable c ause to be lieve that Cree cy had either

assaulted Killibrewor attempted to steal Killibrew’ s proper

ty . Simpl e assa

ult and attempted thef

t are misdemeanors unde r D.C. law. See D.C. Code § 22-404(a )(1) (assa ult); id. § 22-1803 (attempts to commi t crime). A lthough theft is a fe lony

wher e the va lue of the pr operty at issue is at least $1000, see D.C. Code § 22- 3212(a) , it is unclear f

rom the alleg ations in the Complaint whether Cree cy had alr eady

taken proper ty back into the house befor e the of fice rs ar rived or whether

the prope rty

was still outsi de the house. F urthermor e, the f acts pled in the Complaint do not indicate spec ifically what proper ty Killibrew ac cused Cre ecy of trying to stea l or how valua ble the prope rty

was. There fore , based on the fac ts as alleg ed by Creec y , it does not appea r that Jackson and Walker had proba ble ca use to believe that Creec y had committed fe lony

theft or that he was attempting to steal proper

ty in their prese nce. D .C. law does per mit a warr antless ar

rest for assault in circ umstances whe re the arr estingoffice r has pr obable c ause to be lieve that, “unle ss immediately

arr ested, the suspe ct may

not be appr ehende d, may cause injury

to others, or may

tamper w ith, dispose of, or de stroy

evidenc e.” See D.C. Code § 23-581(a )(1) (C). Howe ver, the fac ts as pled in the Complaint do notsug g est that Cree cy was a flig ht risk or likely

to injure others or tamper with evidence . The c ase of Saidi v. W ashington Metropolitan Area Trans it Authorit y , 928 F. Supp. 21 (D.D.C. 1996), cited by Def endants, is distinguishable be cause the offic ers in that ca se had proba ble ca use to believe the suspect wa s attempting to fle e the sc ene a fter c ommitt ing assault. There fore , based on the fac ts pled in the Complaint, C ree cy has suffic iently

stated a c laim

11that his arre st was unlawf ul. Accor dingly , the Court shall deny Def endants’ motion to dismiss Creec y ’s fa lse arr est claims. B. Claims for

Malicious Prosecution/Abuse of Proce ss Creec y also asser

ts a ca use of a ction for malicious prose cution or abuse of proc ess under both common law and § 1983. The D.C. Circuit has held that malicious prosec ution is actionable under § 1983 to the e x tent that the plaintiff is unrea sonably “seized” w ithout probable ca use in violation of the Four

th Amendment. See P itt v. District of Columbia , 491 F.3d 494, 511 ( D.C. Cir. 2007). Be cause Creec y has prope rly

asser ted that therewas no proba ble ca use for his arre st, he has a dequate ly

stated a c laim for malicious prose cution under § 1983. To establish a c laim for malicious prose cution under D .C. law, a “ plaintiff must plead and prove f our thing s: (1) the unde rlying suit terminate d in plaintiff’s favor; (2) ma lice on the pa rt of defe ndant; (3) lac k of proba ble ca use for the under lying suit; and (4) specia l injury occa sioned by the plaintiff as the result of the or igina l action. Morowitz v. Marvel , 423 A.2d 196, 198 (D.C. 1980) (c iting Amme rman v. Newman , 384 A.2d 637 (1978)) . Def endants a rgue that Cree cy

has failed to a dequate ly

plead malice and lac k of proba ble ca use. The Court ha s alrea dy conclude d that Creec y ’s alleg ations are sufficie nt to demonstrate lac k of proba ble ca use. See Saidi , 928 F. Supp. at 27 (D.D.C. 1996) (“ There is no material distinction betwee n rea sonable grounds for detention in false imprisonment and pr obable c ause in malicious prose cution.”). The deter mination of malice is “e x clusively for the f actf inder,” and malice may

“be e stablished from the exist ence of a w illful, wanton, rec kless, or oppre ssive disreg ard f or the rights of the plaintiff.” Tyler v. Cent. Charge Serv ., Inc. , 444 A.2d 965, 969 (D.C. 1982). H ere , Creec y expli citly

alleg es in his Complaint that Defe ndants J ackson a nd Walker prose cuted him with ill will and malice ,
12see Compl. ¶¶ 50-51, and a rea sonable fa ctfinder

could infer

the exist ence of malice from the office rs’ a lleg ed disreg ard f or the e x planations offe red by Peache s and Cree cy

at the sce ne and their alleg ed mistreatment of Creec y duringand af

ter his ar rest. Ac cording ly , the Court finds that Creec y has stated a

claim for ma licious prosecution. Creec y also asser

ts a claim for

abuse of proce ss. “The e ssence of the tort of a buse of proce ss is the use of the leg al sy stem ‘to acc omplish som e end which is without the regular purview of

the proc ess, or whic h compels the pa rty ag ainst whom it is us ed to do some collate ral thing whic h he could not leg ally and re gularly

be re quired to do.’” Scott , 101 F.3d at 755 (quoting Bown v. Hamilton , 601 A.2d 1074, 1079 (D.C. 1992)) . Creec y does not distinguish his abuse of proce ss claim from his malicious prosec ution claim in his C omplaint, and the par ties do not addre ss this claim separately in their brief

s. Howeve r, it is appare nt to the Court that Creecy has not pled an a

buse of pr ocess c laim. “The c ritical conc ern in a buse of pr ocess c ases is whether proce ss was used to ac complish an end unintende d by law, and whether

the suit was instituted to achie ve a r esult not regularly or leg ally

obtainable.” Morowitz , 423 A.2d at 198. Creec y has not alleg ed that the c riminal proce eding s were filed ag ainst him for any improper purpose, suc h as to pressur e him to take some a ction or not take some a ction; he mere ly claims that the cr iminal charg es we re unf ounded and pr osecute d with malice. B ut the issuance of proce ss with ulterior motive alone does not e stablish a claim for a buse of pr ocess. See id. There fore , the Court shall g rant De fenda nts’ motion to di smiss C ree cy ’s abuse of proc ess claim. C. Exc essive F

orce Claims Creec y asser ts claims for assa

ult and battery

and violation of his constitutional rights ag ainst Defe ndants J ackson a nd Walker base d on their alleg ed use of excessive forc e while

13arr estinghim. Defe ndants argue that these claims must be dismiss ed bec ause the fac ts pled by

Creec y demonstrate that J ackson a nd Walker used only

rea sonable for ce to a

rre st him and there fore their ac tions are pr ivilege d. “A police office r has a qualified privileg e to use re asonable forc e to ef

fec t an ar rest, provide d that the means e mploy ed ar e not in excess of those which the actor rea sonably

believes to be nece ssary .” Evans-Re id v. District of Col umbia , 930 A.2d 930, 937 (D.C. 2007). “ [T] he test for qualified privileg e in an a ssault and batter y suit is bot h objective a

nd subjective: the off

icer must subjectively

believe that he or she use d no more for ce than nec essar

y , but the office r’s judg ment is compare d to that of a hy pothetical re asonable police office r plac ed in the same situation.” Scales v . District of C olumbia , 973 A.2d 722, 730 (D.C. 2009). He re, Cre ecy

has alleg ed that De fenda nts J ackson a

nd Walker intentionally

harme d him duringthe ar

rest, and if

true, this would defe at the subjec tive element of the qualified pr ivilege

. For claims based on violation of the Four th Amendment, “the que stion is whether the off icer s’ actions ar e ‘obje ctively

rea sonable’ in light of the fa cts and c ircumstance s confr onting them, without reg ard to their unde rly ing intent or

motivation.” Graham v. Connor , 490 U.S. 386, 397 (1989). “ An offic er w ill only be held liable if

the forc e used w as so excessive that no re asonable office r could have believe d in the lawfulne ss of his actions.” Rogala v. District of Columbia , 161 F.3d 44, 54 ( D.C. Cir. 1998). The Court finds that the fa cts alleg ed in Cree cy ’s Complaint are suff icient to make out an excessive forc e cla im. Creecy alleg es that Jackson and Walker thre w him up ag ainst the wall without warningand twisted his arm so tightly that his shoulder separ ated a nd then intentionally slammed on the bra

kes so that his body

whipped bac k and for

th in the back of

the police c ar e n route to the police station. Base d on these fa cts as alleg ed in the Complaint and draw ing a ll

14infere nces in fa vor of Cre ecy , a re asonable jury could conc lude that this force was e x cessive. Acc ording ly , the Court shall deny Def endants’ motion to dismiss Creec y ’s excessive for ce claims. D. NegligenceClaim Against Defendants J

ackson and W

alker In Count VI I I , Creec y

asser ts a claim for

neg lige nce a g ainst Defe ndants J ackson a nd Walker. Police off

icer s may be liable f

or neg lige nce unde r District of Columbia law whe re the y violate the standa

rd of c arethat would be exerc ised by a re asonably

prudent police office r. Scales , 973 A.2d at 730. Howe ver, where a plaintiff a sserts claims for both neg lige nce a

nd assault and battery

based on e x cessive f

orce , the neg lige nce c laim “must be distinctly pled and based upon at least one fa ctual sce nario that pre sents an aspe ct of ne g lige nce a part fr om the use of excessive for ce itself a nd violative of a distinct standar d of ca re.” Id. (quoting Smith v. District of Columbia , 882 A.2d 778, 792 (D.C. 2005)) . Creec y arg ues that he ha s a sepa

rate neg lige nce c laim based on his alleg ations that J ackson a nd Walker fa iled to properly investigate the situation once they

arr ived on the sce ne. See Compl. ¶¶ 14-15, 20. Howe ver, Cre ecy does 6 not alleg e that Jackson and Walker ha d a duty to investigate or e x plain how the bre ach of such a duty cause d him injury

. See Slaby v. Fairbridge , 3 F. Supp. 2d 22, 29 (D.D .C. 1998) (“Aclaim of neg lige nce r equire s the plaintiff to plead ‘ a duty of ca re ow ed by

the def endant to the plaintiff, a bre ach of

that duty by the def endant, a nd damag e to the intere sts of the plaintiff, proximately

cause d by the bre ach.’ ”) ( quoting District of C olumbia v. Cooper , 483 A.2d 317, 321 (D.C. 1984)). Although Creec y does alleg e that Jackson and Walker ha d a duty to “ca rry out their

Creec y also argues that he ha s asserte d a neg lige nce c laim based on Jackson and 6 Walker’s a lleg ed handc uffingCreec y too tightly , but this allegation is properly construed a s part of his excessive forc e cla ims. 15duties in a ca ref ul, safe, pr

udent and law ful manner

so as to avoid injuries or damag es,” see Compl. ¶ 65, that alleg ed duty does not enc ompass a duty to investigate, and the only alleg ed brea ch of that duty

occur red dur ing the alleg edly

unlawful a

rre st and alleg ed use of

excessive forc e, see id. ¶ 66. Ther efor e, the Court finds that Cree cy has fa iled to state a c laim for neg lige nce unde r D.C. law. Ac cording ly , the Court shall g rant De fenda nts’ motion to di smiss Count VI I I

. E. Claim for Intentional Infliction of Emotional Dis tress In Count I I I , Creec y

asser ts a claim for

intentional infliction of emotional distress. To establish such a c laim under D.C. law, a plaintiff must show “extreme and outra g eous conduc t” on the par t of the def

endant whic h intentionally or re cklessly

cause s the plaintiff seve re emotional distress. Baltimore v. District of Columbia , 10 A.3d 1141, 1155 (D.C. 2011). To qualify as “e x treme a

nd outrag eous,” the conduct must be “ so outrag eous in cha rac ter, a nd so extreme in degree , as to g o beyond all possible bounds of dece ncy , and to be r eg arde d as atroc ious, and utterly

intolerable in a

civiliz ed community .” Kotsch v. District of Col umbia , 924 A.2d 1040, 1045-46 (D .C. 2007). “Where rea sonable pe rsons may differ , it is for the jury , subject to the control of

the cour t, to determine whe ther, in the pa rticular c ase, the conduct ha s been suf ficiently extreme and outra g eous to result in liability .” Drejza v. Vac caro , 650 A.2d 1308, 1316 (D.C. 1994) (c itation and alteration omit ted). Def endants a rgue that the c halleng ed conduc t cannot be c onsidered “ extreme and outrag eous” be cause there was c lear ly probable cause for Cre ecy ’s ar rest. Howe ver, a s the Court explained above, Cre ecy

has suffic iently

alleg ed that ther e wa s no probable c ause f or his arr est. In light of the alleg ed lac k of proba ble ca use and a lleg ed intentional ac ts taken to harm Cre ecy , it

16is for a jury to determine whether

Def endants’ a ctions amount to “extreme and outra g eous” conduct. Ac cording ly , the Court shall deny Def endants’ motion to dismiss Count I I I

. F. Claims Asserted Against the Distri ct of Columbia Creec y asser ts claims ag ainst the District of Columbia under both § 1983 and c ommon law. “Amunicipality

may be sued unde r Section 1983 for implementing or

executing a

policy or custom that cause s the deprivation of an individual’s constitutional rights.” Rogala v. District of Columbia , 161 F.3d 44, 56 ( D.C. Cir. 1998) (citing Monell v. D ep’t of Soc. Se rvs. , 436 U.S. 658, 690-91 (1978) ). In this case, howe ver, Cre ecy has fa iled to plead any

fac ts relatingto the exis tence of a policy

or custom by

the District of Columbia that is in any way connec ted to the alleg ed deprivation of his constituti onal rights. Creec y identifies only

two alleg ations that could possibly relate to a municipal policy or custom. Fir st, Creec y alleg es that the District of Columbi a “a dminist ers a

set of law e nforc ement policies, rule s, prac tices and c ustoms invol ving the ar rest, appr ehension a

nd detention of c itiz ens, as we ll as the hiring , trainingand super vision of its police offic ers.” Compl. ¶ 4. Second, Creec y alleg es that the District of Columbia “a cted neg lige ntly , car elessly

and re cklessly

by failingto properly

train, super

vise, control, dire ct and monitor its employ ees” and “f ailed to train De fenda

nts J ackson a

nd Walker on the prope r investigation procedur es and on pr ocedur es for sear chingand ar

restingof individuals they come into contact with.” Id. ¶ 55. These alleg ations are conclusory and fa il to plausibl y

show that a municipal policy

or custom ca

used Cree cy ’s constitutional rights to be violate d. Acc ording ly , the Court shall gr ant Def

endant’ s motion t o dismiss Creec y ’s § 1983 claim ag ainst the District of Columbi a. Def endants a lso argue that Cree cy has fa iled to plead fa cts sufficie nt to support his claims

17of neg lige nt hiring, tra ining, a nd supervision in Counts VIand VI I . Howeve r, Cree cy has alleg ed that the District of Columbia was ne g lige nt in failing to tra in Defe ndants J ackson a nd Walker on the prope r proc edure s for a rre sts and investiga

tions and that it failed to conduct a proper background che ck on them prior to hiringthem. See Compl. ¶¶ 55-56, 60-61. The Court is satisfied that Cree cy

has alleg ed fa cts sufficie nt to state claims for ne g lige nce a g ainst the District of Columbia. Accor dingly , the Court shall deny Def endants’ motion to dismiss Counts VIand VI I

. The Court notes that the District of Columbi a may

also be liable f

or the intentional torts of its employ ees a ctingwithin the scope of the ir employ ment under the theory

of respondeat superior

. W

ade v. D istrict of Columbia , 310 A.2d 857 (D.C. 1973) ( en banc ). G. Claim Based on W arrantless Entry to the Home Although the parties do not addr ess this claim in their briefs, the Court notes that Creec y appea rs to be asse rtinga cla im for a violation of his Four th Amendment rights based on J ackson’ s and Walker’ s alleg ed wa rra ntless entry

into the house in order

to arre st him. See Compl. ¶ 27 (“De fenda

nts J ackson a

nd Walker for cef

ully enter ed Plaintiff’s home without permission and without a wa rra nt.”). This cla im is notclea rly meritless. See Payton v. New Y ork, 445 U.S. 573, 590 (1980) (“ In terms that apply equally to seizures of prope rty

and to seizures of per sons, the Four th Amendment has dra

wn a f irm line at the entra

nce to the house

. Absent exige nt circumstanc es, that threshold may not rea sonably

be cr ossed without a war rant.” ). Be cause Def

endants do not addr ess this claim in their motion to di smiss, the Court has no ba sis to dismi ss it.

18H. Creecy ’s Motion to Amend Complaint

Creec y has filed a

[14] Motion for L eave to Amend Complaint, which is opposed by Def endants. Cre ecy

seeks lea ve to amend his c omplaint to add new fa ctual alleg ations in support of his claims. Pursuant to Fe dera l Rule of Civil Procedur e 15(a )(1) , a par ty may amend its pleading s once a s a matter of course within twenty -one da y s after service or within twenty -one day s after service of a r esponsive plea ding or a motion filed under Rule 12(b). Where, a s here , a party seeks to ame nd its pleading s outside that time period, he may do so only

with the opposing party ’s written c onsent or the district cour t’s leave . Fe d. R. Civ. P . 15(a) (2). The decision whether to gr ant leave to amend a c omplaint is wit hin the discretion of the district court, but leave “should be fr eely

g iven unless there is a g ood rea son, such as futility , to the contra ry .” W illoughby v. Potomac Ele c. Power Co., 100 F.3d 999, 1003 ( D.C. Cir. 1996), cert. de nied, 520 U.S. 1197 (1997); see also Foman v . Davis, 371 U.S. 178, 182 (1962) (“ I f the unde rlying f acts or circ umstances r elied upon by a plaintiff may

be a pr oper subjec t of relief , he ought to be aff

orded an opportunity

to test his claim on the merits. In the abse nce of any appar ent or de clar ed re ason – such as undue delay , bad fa ith or dilatory motive on the part of the movant, repe ated f ailure to

cure defic iencies by

amendments pre viously

allowed, undue prejudice to the opposing pa rty by virtue of a llowance of the amendment, futility of ame ndment, etc. – the le ave sought should, as the rules r equire , be ‘f

ree ly g iven.’” ). Def endants a rgue that Cree cy

should not be g iven leaveto amend the Complaint beca use (1) Cre ecy

failed to c omply

with L ocal Civil Rule 7(i), which re quires a motion for le ave to f ile

an ame nded plea ding to be acc ompanied by an orig inal of the propose d pleadingas ame nded; and (2) Cre ecy ’s proposed Amended Complaint would not survive a motion to dismi ss. Be cause

19Creec y

failed to c omply

with L CvR 7(i), the Court cannot dete rmine whe ther or not his propose d amendments would be futile. Fur thermore , it is unclear f

rom Cree cy ’s motion how he specific ally

intends to amend his Complaint. According ly , the Court shall deny Creec y ’s motion to amend without prejudice ; Creec y may file a ne w motion for leave to amend that complies with L ocal Civil Rule 7(i). IV. CONCLUSION For the fore g oing r easons, the Court sha ll gr ant Def endant Jackson’s [22] Motion to S et Aside De fault and grant De fenda nts’ [9] Motion to Dism iss with respect to Cree cy ’s § 1983 claim ag ainst the District of Columbia in Count I , Creec y ’s abuse of proc ess claim in Count V, and Cree cy ’s neg lige nce c laims ag ainst Defe ndants J ackson a nd Walker in Count VI I I ; the Court shall deny

the motion to dis miss with respect to Cree cy ’s re maining c laims. The Court shall also deny without prejudice Cre ecy ’s [14] Motion for L eave to Amend Complaint. The Court shall order the Clerk to re issue the summons for Def endant Walker

and orde r Cree cy

to serve Walker within a rea sonable time. The Court sha ll also order Cre ecy to move for the e ntry

of def ault as to Def endant Killibrewand see k a def ault judgme nt, if appropr iate. An a ppropriate Orde r

acc ompanies this Memorandum Opinion.

Date: Marc h 31, 2011 /s/ COL L EEN KOL LAR-KOTELLY United States District J udg e

20