The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, David Arrington, brings this action against the defendants, the District of Columbia and Detective Milton Norris of the District of Columbia Metropolitan Police Department, alleging that the defendants violated his civil rights guaranteed by 42 U.S.C. § 1983 (2000) ("§ 1983"), and his constitutional rights guaranteed under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. The plaintiff also seeks a liability finding against the defendants for the alleged commission of several common law torts.*fn1
Currently before the Court is the defendants' motion for summary judgment, the plaintiff's opposition, and the defendants' reply to the plaintiff's opposition.*fn2
In support of their motion for summary judgment, the defendants advance three grounds upon which they contend the Court should rule in their favor on the plaintiff's civil rights violation claims: (1) the plaintiff cannot prove that a § 1983 violation was committed; (2) the plaintiff cannot establish claims under either the Fifth or the Fourteenth Amendment; and (3) defendant Norris is entitled to qualified immunity as to the Fourth Amendment claim filed against him, which precludes liability findings being issued against both him and the District of Columbia.*fn3 Defs.' Mem. at 9, 12, 15-17. In response, the plaintiff argues only that his Fourth Amendment claim survives summary judgment. Pl.'s Opp'n at 8.
Having failed to respond to the defendants' challenges to his § 1983, and the Fifth and Fourteenth Amendment claims, the plaintiff has conceded the challenges to those claims, preserving only his claim under the Fourth Amendment.*fn4 Pl.'s Opp'n at 8. Further, as set forth below, this Court finds that defendant Norris is entitled to qualified immunity as to most of the Fourth Amendment theories of liability lodged against him. Accordingly, the Court must grant summary judgment for the defendants on the plaintiff's § 1983 claim and all of his constitutional claims, except for two theories of Fourth Amendment liability which the defendants did not address in their summary judgment motion. Specifically, for the reasons explained below, the Court finds that on the record currently before it that it cannot address whether the components of the plaintiff's Fourth Amendment claim based on the seizure of his property and his handcuffing after he was shot can survive summary judgment. And, because the plaintiff's common law tort claims are only properly before this Court based on pendent jurisdiction, the Court will dismiss without prejudice the defendants' motion as related to these claims until it has the opportunity to resolve the plaintiff's remaining theories of the defendants' Fourth Amendment liability.
On the evening of August 25, 2006, the plaintiff, a resident of the District of Columbia, exited a house located at 2233 Prout Street, S.E. in Washington, D.C., into a poorly lit alleyway. Pl.'s Opp'n at 1; Defs.' Mem., Exhibit ("Ex.") 3 (Jun. 30, 2008 Deposition of David Arrington ("Arrington Dep.")) at 32.*fn5 As the plaintiff walked down the alley, he observed a police cruiser driving on Nicholson Street and then saw an African-American male holding a gun run into the alley in his direction, followed closely by another man. Defs.' Mem., Ex. 4 (Aug. 26, 2006 Interview of David Arrington ("Arrington Int.")) at 5-6. The man with gun was later identified as Dwayne Shorter, Pl.'s Opp'n at 2, and the man chasing Mr. Shorter was defendant Norris, a plain-clothes police detective, who had begun to chase Mr. Shorter after defendant Norris heard gun shots and saw Mr. Shorter carrying a gun. Id.
The plaintiff witnessed Mr. Shorter drop his weapon, Defs.' Mem., Ex. 4 (Arrington Int.) at 5-8, and heard defendant Norris say "freeze," and the plaintiff started running in the opposite direction of both defendant Norris and Mr. Shorter, Id.; Pl.'s Opp'n at 2-4. While running, the plaintiff's "leg got numb" and he fell to the ground, which he later learned was the result of being shot by defendant Norris.*fn6 Defs.' Mem., Ex. 4 (Arrington Int.) at 5; Pl.'s Opp'n at 1. While the plaintiff was still on the ground, defendant Norris approached him and asked if the gun that the suspect dropped belonged to the plaintiff, Defs.' Mem., Ex. 4 (Arrington Int.) at 5; Pl.'s Opp'n at 3, to which the plaintiff responded in the negative, Defs.' Mem., Ex. 4 (Arrington Int.) at 5.
After other officers from the Metropolitan Police Department arrived on the scene, the plaintiff was taken to The George Washington University Hospital for treatment. Defs.' Mot., Ex. 3 (Arrington Dep.) at 52. While being transported to the hospital, the plaintiff was placed in handcuffs, but neither the plaintiff nor the defendants contend that defendant Norris handcuffed the plaintiff. Pl.'s Opp'n at 6; Defs.' Reply at 6. As a result of the incident, the Metropolitan Police Department seized the plaintiff's property as evidence, including his watch, cellular telephone, car keys, five dollars, clothing and tennis shoes.*fn7 Pl.'s Opp'n at 6-7. The property has not been returned to the plaintiff. Pl.'s Opp'n at 7; Defs.' Reply, Ex. B (July 1, 2008 Deposition of Dan Lewis ("Lewis Dep.")) at 7-9.
II. SUBJECT MATTER JURISDICTION
Because jurisdiction is a threshold issue that a federal court must address, the Court must first analyze the question of its jurisdiction when raised by a party or assess sua sponte its jurisdiction at any point during the litigation even in the absence of a challenge before considering the merits of a plaintiff's lawsuit. Fed. R. Civ. P. 12(h)(3). Here the Court has federal question jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) over the plaintiff's Fourth Amendment constitutional claims.*fn8 And, the Court also has supplemental jurisdiction under 28 U.S.C. § 1367 over the plaintiff's common law tort claims to the extent that it has federal question or diversity jurisdiction over other related claims that arise from a "common nucleus of operative fact." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). The Court will therefore consider in part the merits of the defendants' challenges to the plaintiff's Fourth Amendment claim.
III. SUMMARY JUDGMENT ANALYSIS
A. Summary Judgment Standard of Review
Summary judgment is appropriate under Rule 56(c) where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (2008). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may be entered after there has been an "adequate time for discovery . . . [and the] party [against whom the motion has been filed] fails to make a showing sufficient to establish the ...