REGGIE B. WALTON, 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.
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 plaintiffs 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.
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.
On the evening of August 25, 2006, the plaintiff, a resident of the District of Columbia, exited a house located at 2233
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 plaintiffs "leg got numb" and he fell to the ground, which he later learned was the result of being shot by defendant Norris.
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
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 plaintiffs 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 plaintiffs Fourth Amendment constitutional claims.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Summary judgment is, however, "a drastic remedy, [and therefore] courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed material factual issue." Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D.C.Cir.1986). Thus, the Court must draw "all inferences ... in favor of the non-moving party." Coward v. ADT Sec. Sys., Inc., 194 F.3d 155, 158 (D.C.Cir.1999). However, the party opposing the motion for summary judgment "may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotations
B. Summary Judgment Analysis
In the defendants' motion for summary judgment, they argue that (1) the plaintiff cannot prove that a § 1983 violation occurred because there is no evidence of a flawed governmental custom or policy, Defs.' Mem. at 9-10; (2) the plaintiff cannot state a claim under the Fourteenth or Fifth Amendments because the Fourteenth Amendment does not apply to the District of Columbia and the claims brought under the Fifth Amendment are better analyzed under the Fourth Amendment, id. at 12-13; and (3) defendant Norris did not intentionally shoot the plaintiff and is entitled to qualified immunity as to the Fourth Amendment claim filed against him, id. at 13, 15-17.
As noted earlier, the plaintiff's opposition to the defendants' motion does not address the defendants' challenges to his Fifth Amendment, Fourteenth Amendment, or § 1983 claims. Pl.'s Opp'n at 8. The plaintiff does, however, respond to the defendants' challenge to his Fourth Amendment claim, stating that (1) there are genuine issues of material fact, id. at 8; see Pl.'s Gen. Issues;
In the defendants' reply to the plaintiff's opposition, they assert that the plaintiff has failed to state a claim under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and note that he has failed to contest the defendants' arguments regarding his claims under § 1983, and the Fifth and Fourteenth Amendment, and, therefore, the plaintiff has conceded their challenges to these claims, Defs.' Reply at 3. And regarding his Fourth Amendment claim, the defendants reply that the plaintiff's equivocal
"[I]f the [party opposing a motion for summary judgment] files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may treat those arguments as conceded, even when the result is dismissal of the entire case." Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) (internal citations omitted); See Tafler v. District of Columbia, 539 F.Supp.2d 385, 393 (D.D.C.2008) (finding summary judgment appropriate where the non-moving party violated Local Rule 7(b) in failing to address an argument it in his opposition to the motion for summary judgment); Stephenson v. Cox, 223 F.Supp.2d 119, 122 (D.D.C.2002) ("The court's role is not to act as an advocate for the plaintiff and construct legal arguments on his behalf in order to counter those in the motion to dismiss."). This principle comports with the view that it is "well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, [the Court] may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., Gen. Bd. Of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); additional citation omitted); see also Day v. D.C. Dep't of Consumer & Regulatory Affairs, 191 F.Supp.2d 154, 159 (D.D.C.2002) ("If a party fails to counter an argument that the opposing party makes in a motion, the [Court] may treat that argument as conceded.").
As the defendants argue correctly, the plaintiff's response to their motion for summary judgment fails to respond to the argument "that [the] [p]laintiff can muster no evidence, pursuant to Monell v. Department of [Social Services], 436 U.S. 658, 691 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978), to show that the District of Columbia violated any constitutional right afforded [the] [p]laintiff." Defs.' Reply at 3. Moreover, the defendants correctly note that the "[p]laintiff also has offered no argument in opposition to [their] assertions that [he] cannot maintain a claim under either the Fifth or Fourteenth Amendments." Id. The Court must therefore accept the defendants' argument that they are entitled to summary judgment on these components of Count I of the amended complaint. Id. Therefore, the only component of Count I remaining is the plaintiff's Fourth Amendment claim against the defendants.
In determining whether or not a government official is entitled to qualified immunity, the Court will apply the two-step analysis of Saucier v. Katz,
The issue of intent bears directly on the first step of the Saucier test because it determines whether a Fourth Amendment violation occurred. See County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (finding no Fourth Amendment violation where police execute an unintended seizure); see also Bublitz v. Cottey, 327 F.3d 485, 489 (7th Cir.2003) (finding that a seizure occurs where there is "governmental
However, even if the plaintiff had established that a question of fact existed as to whether defendant Norris saw him in the alley, this result would have no impact on the final assessment of whether the plaintiffs Fourth Amendment claim survives the defendants' summary judgment motion because the Court finds that the defendants prevail on defendant Norris' qualified immunity defense. See Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) ("The protection of qualified immunity applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" (citation omitted)).
The second prong for assessing a claim of qualified immunity under Saucier requires a plaintiff to show that there was a violation of a clearly established constitutional right. While it is a longstanding right of the people to be free from unreasonable force at the hands of police officers, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("`No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'" (citation omitted)); see also Saucier, 533 U.S. at 194-95, 121 S.Ct. 2151, the question of whether it would be clear to a reasonable officer that defendant Norris' conduct here was unlawful in the situation he was confronting is a more complicated question. In assessing claims of deadly force, the Supreme Court explained in Tennessee v. Garner, that it is unreasonable for an officer to "seize an unarmed, nondangerous suspect by shooting him dead [,] ... [but][w]here the officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, to ensure that police officers and public officials are able to perform their duties properly, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citing Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)).
Here, the Court concludes that there is sufficient evidence in the record to indicate that defendant Norris acted as any reasonable officer would have when faced with the same situation and therefore his actions are shielded by qualified immunity. Even if an officer's belief that there was a need to utilize force was a mistaken one, the officer's qualified immunity defense prevails "if a reasonable officer possessing the same information could have believed that his conduct was lawful." Reed v. District of Columbia, 474 F.Supp.2d 163, 173 (D.D.C.2007) (citing District of Columbia v. Evans, 644 A.2d 1008, 1016 (D.C.1994)). The reasonableness of an officer's actions is to be assessed "from the perspective of a reasonable officer on the scene," rather than through the lens of hindsight. Kotsch v. District of Columbia, 924 A.2d 1040, 1047 (D.C.2007) (quoting Etheredge v. District of Columbia, 635 A.2d 908 (D.C.1993)); Young v. Scales, 873 A.2d 337, 344 (D.C. 2005). Norris' decision to use force under
The Court's reasonableness determination results from its conclusion that Norris had sufficient grounds to believe that his life was in imminent danger at the hands of an unidentified gunman.
C. The Common Law Claims
The plaintiffs common law tort claims are only properly before this Court pursuant
For the foregoing reasons, the Court must grant summary judgment to the defendants on the plaintiff's federal claims brought under § 1983, and the Fifth and Fourteenth Amendments to the United States Constitution. The Court must also partially grant summary judgment to the defendants on the plaintiff's Fourth Amendment claim, but declines to determine whether summary judgment is proper under the Fourth Amendment as to the plaintiff's Fourth Amendment claims based on the seizure of his property and his handcuffing (as to the District of Columbia), having concluded that the challenges to these components of his Fourth Amendment claims have not been properly raised. Accordingly, the Court declines at this juncture to determine whether the plaintiffs common law claims are properly before this Court and will therefore deny without prejudice the defendants' request to dismiss these claims.