The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Before the Court are cross-motions for partial summary judgment in this case which has been brought under 42 U.S.C. § 1983 and assorted provisions of the common law. The suit grows out of an encounter between plaintiff Syed Qutb and several officers of the Metropolitan Police Department (MPD) that occurred in a private parking lot near Dupont Circle in the early morning of February 4, 2001. Plaintiff alleges that the police searched, seized, and ultimately impounded his car, which he was never able to recover, in violation of both the Fourth and Fifth Amendments. He further alleges that during this encounter one of the officers assaulted him in violation of the Fourth Amendment. For the reasons given below, the Court will grant in part and deny in part defendants' Motion for Partial Summary Judgment, and will deny plaintiff's Motion for Partial Summary Judgment.
The events giving rise to this case began on February 4, 2003, at approximately 12:43 a.m. when the MPD received a call from an unidentified person reporting a "peeping Tom" incident in progress in a parking lot located along the 1700 block of Church Street, NW. The caller described a dark-complexioned male sitting in a red, maroon, or brown car who appeared to be peering into nearby houses with binoculars. Several officers, supervised by MPD Lieutenant Diane Grooms, responded to the call. When they arrived on the scene, they found plaintiff, who matched the description given by the lookout, sitting on the seat of his vehicle, a 1989 Volkswagen Jetta, which was parked in the lot, but not in a marked space. The officers questioned plaintiff about the alleged voyeurism, but he refused to answer their queries and consistently maintained that he was doing nothing wrong. (Dep. of Syed Qutb Dep. [Qutb Dep.] 82:2-8; Dep of Diane Groomes [Groomes Dep.] 34:18-21.) They then ran a license and registration check on the car, which revealed that plaintiff was the lawful owner but did not reside in the area. At some point, one of the officers saw a pair of binoculars in the car and removed them. (The parties dispute the extent to which the rest of the car, including the trunk, was searched, but this dispute is ultimately immaterial to the legal claims that plaintiff now pursues.) Nevertheless, for reasons that are not altogether clear, the officers decided not to arrest plaintiff in connection with the incident.
Instead, they decided to take action against plaintiff's automobile. According to Lieutenant Groomes, she told plaintiff several times that his car would be ticketed and towed if he refused to leave, and indeed that he could still be arrested if he did not do so. Plaintiff persisted in maintaining his innocence and his right to stay where he was. (Groomes Dep. 39:12-40:16; 111:12-15.; Dep. of Lance Kashinsky [Kashinsky Dep.] 20:20-21:12.) Ultimately, the officers demanded that plaintiff surrender the keys to his car, which he did. (Pl.'s Stat. of Material Facts Not in Dispute ¶ 15-17.) Then, at approximately 1:00 a.m., Groomes wrote up a citation for illegally parking on private property; which she placed on the car's windshield. (Defs.' Stat. of Material Facts Not in Dispute ¶ 8.) It is disputed whether plaintiff was still on the scene at this point, but in any event he was not personally served with the citation.*fn1 (Groomes Dep. 111:4-7.) Thereafter, Lieutenant Groomes requested that the police dispatcher send a towcrane operator to remove plaintiff's car from the Church Street lot. Responding promptly to this call, a private towing company, ANT Towing (also known as John-John Inc.), towed the vehicle. Although other cars were parked in the lot, only plaintiff's car was issued a citation and only plaintiff's car was towed. At no time that night did the officers contact the lot owner to determine whether plaintiff had permission to park there or whether the owner wished plaintiff's car to be towed. Nor had the owner previously executed a written agreement authorizing the towing of vehicles parked illegally there. (Pl.'s Stat. ¶¶ 33-34.)
Plaintiff maintains that he had left the lot while this activity was taking place, having been effectively chased away by the officers, and that, by the time he returned, his car, unbeknownst to him, had already been towed. (Qutb Dep. 95:5-14.) After unsuccessfully searching the nearby area for the vehicle, he tried to report by phone that it had been stolen. He was told that he would have to file a report in person at the Third District, which he did on February 10, 2001. (Plaintiff alleges, but defendants dispute, that the police never told him either the name of the towing company or the location to which the vehicle had been towed.) Plaintiff never was able to recover his car; nor has he even been able to definitively ascertain its whereabouts. The District has acknowledged that it does not know where the vehicle is and has confirmed that it will not be able to return the car to plaintiff. Indeed, according to information provided by the towing company, plaintiff's car was "junked" in April 2001. (Pl.'s Mot. for Summ. J., Ex. 23.)
Thus stymied, plaintiff filed the present action on February 1, 2002. He named as defendants the District of Columbia, Chief Charles Ramsey,*fn2 Lieutenant Groomes, as well as five other MPD officers who were present at the Church Street lot on February 4, 2001 – Kevin Griffin; Lance Kashinsky; Eric Hampton; Jermaine Wilson; and Kevin Taylor. In his Second Amended Complaint, plaintiff asserts a variety of common law claims – assault and battery (Count 1), conversion (Count 2), fraud and deceit (Count 3), unjust enrichment (Count 4), negligent training/supervision and respondeat superior as to the District (Counts 5-6), and intentional infliction of emotional distress (Count 8) – along with federal claims under § 1983 for violations of the Fourth Amendment right to be free from illegal searches and seizures and of the Fifth Amendment right to be free of deprivations of property unaccompanied by due process of law (Count 7). These statutory claims are directed at both the individual officers and the District, the latter based on the city's policies and customs with respect to the seizure and towing of cars parked on private property. (Sec. Am. Compl. ¶ 112.)
Defendants have now moved for partial summary judgment on the following claims: (1) the § 1983 claim based the search of the vehicle by Officers Wilson and Kashinsky;*fn3 (2) the § 1983 claim based on the use of excessive force by Officer Wilson; (3) the § 1983 claim based on the seizure and towing of the vehicle; (4) the § 1983 claims against the District based on a theory of municipal liability; (5) assault and battery; (6) unjust enrichment;*fn4 (7) intentional infliction of emotional distress. Defendants have also asked the Court to dismiss plaintiff's claim for punitive damages. For his part, plaintiff has moved for summary judgment on the § 1983 claim based on the seizure and towing of the car, including on the issue of municipal liability. The Court now turns to the merits of these various arguments.
I. Summary Judgment Standard
The standard for reviewing a motion for summary judgment is well known and readily stated. Under Fed. R. Civ. P. 56, summary judgment is to be granted where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine, and should preclude summary judgment, if a reasonable jury could return a verdict in favor of the non-moving party. Id. In contrast, the moving party is entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Washington Post Co. v. U.S. Dep't of Health and Human Serv., 865 F.2d 320, 325 (D.C. Cir 1989). However, the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. Therefore, while the court "must assume the truth of all statements proffered by the party opposing summary judgment," it need not consider wholly conclusory statements for which no supporting evidence is offered. Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999).
II. The Seizure of Plaintiff's Car
The central issue in this case concerns whether the towing and continued seizure of plaintiff's car violated, respectively, the Fourth and Fifth Amendments. Plaintiff has moved for summary judgment on both claims; defendant has moved for summary judgment only on the Fifth Amendment claim.
Plaintiff first contends that the initial towing of his car was an unreasonable seizure prohibited by the Fourth Amendment.*fn5 He suggests that the officers lacked probable cause to seize the car in connection with the peeping Tom investigation, because that investigation had concluded by the time that the car was towed. (Pl.'s Mot. for Summ. J. at 13-15.) The problem with this argument is that the decision to seize the vehicle was largely unrelated to the criminal investigation that originally drew the officers to the parking lot. According to Lieutenant Groomes, the car was ticketed and towed because she believed it was illegally parked on private property, not because it was thought relevant to the peeping Tom complaint: "He could not offer any reason for legally being there. He did not have a sticker or anything in his window saying he belongs there. He was also parked in the middle of the lot in an unmarked space just blocking the lot by the dumpster. He was not in a legally marked ...