UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-1131


BRIEANNA KRISTEN GUNSAY; KRISTEN PETIT GUNSAY,

                    Plaintiffs – Appellants,

             v.

B. ROBERT MOZAYENI, M.D.; SGT. TROY PLUMMER, #6137, Individually
and in his official capacity as a Montgomery County Sheriffs Deputy; LT. GREG
HENDERSON, Individually and in his official capacity as a Montgomery County
Sheriff's Deputy; DEPUTY KEVIN STULTZ, #6194, Individually and in his official
capacity as a Montgomery County Sheriffs Deputy; METIN ATA GUNSAY;
LINDA LEE MOYER WILLIAMS,

                    Defendants – Appellees,

             and

DEPUTY WADE, Individually and in his official capacity as a Montgomery County
Sheriffs Deputy; SPECIAL AGENT DAN BALOCKI, Individually and in his
official capacity as a Special Agent with the State Department's Diplomatic Security
Service; UNITED STATES OF AMERICA; MARSHALL JOHN DOE 1,
Individually and in his/her official capacity as a United States Marshall;
MARSHALL JOHN DOE 2, Individually and in his/her official capacity as a United
States Marshall,

                    Defendants.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:14−cv−01347−JFM)


Argued: May 11, 2017                                             Decided: June 21, 2017
Before WILKINSON, KING, and WYNN, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants. Jason L. Levine, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Annapolis, Maryland; Molissa Heather Farber, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; David Keith Felsen,
FELSEN & SARGENT, LLC, Rockville, Maryland; Clarence Paul Smith, LAW OFFICE
OF C. PAUL SMITH, Frederick, Maryland, for Appellees. ON BRIEF: Brian E. Frosh,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees Greg Henderson and Kevin Stultz. Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, Alex S. Gordon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee Troy Plummer.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Kristen Gunsay, and her daughter Brieanna Gunsay (together, “Plaintiffs”), appeal

the dismissal of their claims under the Fourth Amendment and Maryland state law relating

to alleged injuries arising from their encounter with various state and federal law

enforcement officers. That encounter arose from a long-running dispute between Kristen

and her ex-husband, Metin Gunsay, to obtain custody of their daughter, Brieanna. Having

dismissed all of Plaintiffs’ federal claims on qualified immunity grounds, the district court

declined to exercise supplemental jurisdiction over Plaintiffs’ pendent state-law claims and

therefore dismissed those claims with prejudice. After careful review, we conclude that

the district court did not reversibly err in dismissing Plaintiffs’ claims, with the caveat that

the district court should have dismissed Plaintiffs’ state-law claims without prejudice.

Accordingly, we affirm the judgment below but modify the district court’s order to clarify

that the dismissal of Plaintiffs’ state-law claims is without prejudice.

                                               I.

                                              A.

       The present action is the latest in a series of disputes between Kristen and Metin

stemming from their divorce and custody clashes that have transcended international

boundaries and drawn on the judicial resources of two countries and at least four state and

federal jurisdictions. Because a full account of this convoluted history is unnecessary to

resolve the case at hand, only those facts pertinent to the parties’ present dispute are

summarized below.



                                               3
       Kristen and Metin married in July 1988, and Kristen gave birth to Brieanna in June

1989. According to Kristen, Metin was physically and verbally abusive throughout their

five-year marriage, which ended in divorce in July 1993. In the resulting divorce decree,

a Utah court awarded Kristen full custody of Brieanna, with Metin agreeing to certain

limited visitation rights. In the initial years following the divorce, the parties apparently

abided by the terms of the Utah court’s judgment without major incident.

       In 1997, however, Kristen moved with Brieanna from Utah to British Columbia,

Canada.    This departure prompted an increasingly bitter custody battle, resulting in

numerous—and conflicting—orders from Utah and British Columbia courts. By 2000,

Kristen had obtained orders from the British Columbia courts awarding her permanent

custody of Brieanna; barring Kristen or Metin from removing Brieanna from the province

without prior court approval; and restraining Metin and his family from contacting Kristen

or Brieanna or entering the city in which they lived. Throughout this period, Metin asserted

that Kristen abducted Brieanna and maintained a public website dedicated to her return to

Utah. To that end, Metin obtained orders from Utah courts awarding him sole custody of

Brieanna; repudiating the contrary orders issued by the British Columbia courts; and

holding Kristen in contempt of court.

       Sometime later, Kristen and Brieanna—now an adult—moved from Canada to

Maryland, where Brieanna began receiving specialized medical care to treat an unspecified

“rare illness.” J.A. 17. During the course of this treatment, Plaintiffs allege that Brieanna’s

treating physician, Dr. Robert Mozayeni, discovered Metin’s website dedicated to

Brieanna and contacted Metin to alert him to Brieanna’s whereabouts.                      This
                                              4
communication set in motion the events giving rise to the incident at the heart of this

appeal.

       On April 17, 2011, Metin phoned in a tip to the Montgomery County, Maryland,

Sherriff’s Office that Kristen would be at Mozayeni’s office two days later and was wanted

by Utah authorities. A review of relevant court records revealed two outstanding warrants

authorizing Kristen’s arrest—one issued by a Utah state court for felony custodial

interference and perjury; and a second that appeared to be issued by the U.S. District Court

for the District of Utah for unlawful flight to avoid prosecution. 1

       When Kristen and Brieanna arrived at Mozayeni’s office on April 19, they were

approached by as many as nine officers from multiple agencies, including the Montgomery

County Sheriff’s Office and the U.S. Marshal Service Capital Area Regional Fugitive Task

Force. According to Plaintiffs, immediately after they parked, the officers approached their

car with guns drawn, pointed their guns at Kristen’s and Brieanna’s heads, and ordered

Kristen to exit the vehicle. With Metin and his mother, Linda Williams, looking on from

a nearby patrol car, the officers then allegedly removed Kristen from the vehicle and forced

her to the ground in order to place her under arrest.

       After removing Kristen from the vehicle, and with their guns still drawn, the officers

directed Brieanna to exit the vehicle. According to Brieanna, the officers—with weapons



       1
          The latter of these warrants mistakenly indicates that it was issued by the federal
district court for the “Central District of Utah,” as opposed to the “District of Utah, Central
Division.” J.A. 508. Although Plaintiffs argued below that this apparent typographical
error rendered the warrant invalid, they concede on appeal that the warrant was at least
facially valid at the time of the challenged altercation.
                                              5
now holstered—told her not to move while they handcuffed Kristen and removed her from

the scene. Thereafter, Brieanna claims that the officers repeatedly “moved” her two or

three inches at a time before encircling her and encouraging her to speak with Metin and

Williams. J.A. 411. After refusing to speak with Metin, Brieanna briefly, and reluctantly,

spoke with Williams before being released. Brieanna alleges that she remained at the scene

for approximately an hour after her mother’s arrest.

                                              B.

       After filing a series of lawsuits in Maryland state court, in April 2014, Plaintiffs

brought this action against Metin, Williams, and Mozayeni (collectively, the “Private

Defendants”), as well as the Montgomery County Sheriff’s Office and three of its

employees—Sergeant Troy Plummer (“Sergeant Plummer”), Lieutenant Greg Henderson

(“Lieutenant Henderson”), and Deputy Kevin Stultz (“Deputy Stultz,” and collectively

with the Sheriff’s Office, Sergeant Plummer, and Lieutenant Henderson, the “Public

Defendants”).

       Against the Public Defendants, Plaintiffs alleged various causes of action,

including: (1) unlawful seizure, false arrest without probable cause, false imprisonment,

and excessive force, in violation of their rights under the Fourth and Fifth Amendments

and the Maryland constitution; (2) conspiracy to violate their civil rights, in violation of 42

U.S.C. § 1985; (3) false arrest under Maryland law; and (4) intentional infliction of

emotional distress under Maryland law. Plaintiffs included the Private Defendants in their

civil conspiracy and intentional infliction of emotional distress claims and further allege

that Mozayeni violated Brieanna’s right to privacy under Maryland law.
                                              6
       On January 13, 2015, the district court dismissed nearly all of Plaintiffs’ claims on

motions from the various defendants. In particular, the district court concluded that the

claims against the Private Defendants were barred on res judicata and collateral estoppel

grounds by the earlier state court proceedings between the parties. Those proceedings,

which involved substantially similar allegations, ultimately resulted in the dismissal of

Brieanna’s claims against Metin and Williams, as well as both Plaintiffs’ claims against

Mozayeni. The state court dismissed Plaintiffs’ claims against Mozayeni without prejudice

pursuant to a provision of Maryland law requiring medical malpractice claims to be

submitted to arbitration before being filed in state or federal court.

       As to the claims against the Public Defendants, the district court began its analysis

by explaining that the officers were entitled to qualified immunity in connection with their

efforts to execute warrants issued for Kristen’s arrest. Offering no further explanation, the

district court dismissed each of Kristen’s federal claims against the officers. By contrast,

finding “no justification for [the officers] to point weapons at Brieanna . . . or to detain her

until she had spoken to” her relatives, the district court allowed Brieanna’s claims to

proceed. J.A. 349.

       Citing various errors in the district court’s analysis, Plaintiffs then moved to amend

or alter the district court’s judgment dismissing the bulk of their claims. Although the

district court ultimately denied their motion, the court clarified its earlier holding by noting

that Kristen’s state-law claims against Metin and Williams were not precluded on res

judicata grounds. Nevertheless, the court declined to exercise supplemental jurisdiction



                                               7
over those claims because they raised novel issues of Maryland law and implicated the

state’s unique interest in domestic matters.

       Following discovery on Brieanna’s surviving federal claims, Public Defendants

moved for summary judgment on grounds of qualified immunity. On January 12, 2016,

the district court granted the Public Defendants’ motion and dismissed all of Brieanna’s

remaining claims. This timely appeal followed.

                                               II.

       On appeal, Plaintiffs do not contest the dismissal of their federal civil conspiracy

claims. However, Plaintiffs argue that the district court erred in dismissing their remaining

federal claims against the Public Defendants. Plaintiffs further argue that the district court

abused its discretion in declining to exercise supplemental jurisdiction over their remaining

state-law claims. For the reasons that follow, we disagree.

                                               A.

       Turning first to Plaintiffs’ federal claims, as this action has progressed, Plaintiffs

have offered a variety of bases for relief under the Fourth and Fifth Amendments stemming

from their alleged interaction with the Public Defendants. At this stage, however, Plaintiffs

proceed primarily on the theory that the Public Defendants used excessive force in arresting

Kristen and encouraging Brieanna to speak with her estranged relatives.

       We apply an objective “reasonableness” standard in reviewing excessive force

claims under the Fourth Amendment. Anderson v. Russell, 

, 129 (4th Cir.

2001) (citing Graham v. Connor, 

, 395, 397 (1989)). Under this standard,

“[t]he question is whether a reasonable officer in the same circumstances would have
                                               8
concluded that a threat existed justifying the particular use of force.” 

“is not

capable of precise definition or mechanical application” but instead “requires careful

attention to the facts and circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether [the suspect] is actively resisting arrest or attempting to

evade arrest by flight.” 

(internal quotation marks omitted); see

also Pegg v. Herrnberger, 

, 120 (4th Cir. 2017).

       However, even when an officer’s conduct runs afoul of the Fourth Amendment,

“[q]ualified immunity shields government officials from liability for civil damages,

provided that their conduct does not violate clearly established statutory or constitutional

rights within the knowledge of a reasonable person.”              Estate of Armstrong ex rel.

Armstrong v. Vill. of Pinehurst, 

, 907 (4th Cir. 2016) (internal quotation marks

omitted). In determining whether a law enforcement officer is entitled to qualified

immunity, we engage in a two-pronged inquiry. Tolan v. Cotton, — U.S. —, 

, 1865 (2014) (per curiam). The first prong “asks whether the facts, viewed in the

light most favorable to the plaintiff, show that the officer’s conduct violated a federal

right.” Smith v. Ray, 

, 100 (4th Cir. 2015). The second “asks whether the right

was clearly established” at the time of the alleged violation. 

may analyze

these two questions in “the order . . . that will best facilitate the fair and efficient disposition

of each case.” Pearson v. Callahan, 

, 242 (2009). With these principles in

mind, we first address Kristen’s excessive force claim and then address Brieanna’s claim.



                                                 9
                                               1.

       Because the district court dismissed Kristen’s excessive force claim under Rule

12(b)(6), we review that dismissal de novo, assuming as true all factual allegations set out

in the Amended Complaint and drawing all reasonable inferences in Plaintiffs’ favor.

Hamilton v. Pallozzi, 

, 620 (4th Cir. 2017). For present purposes, we therefore

assume that the officers at the scene approached Kristen’s car with their guns drawn and

pointed at Kristen, removed Kristen from the car, forced her to the ground, and arrested

her pursuant to two outstanding felony warrants, one of which was for evading arrest.

       Regardless of whether the officers’ actions violated Kristen’s rights under the

Fourth Amendment—a question that we need not, and thus do not, answer—the Public

Defendants are entitled to qualified immunity because Plaintiffs fail to identify any

decision, or combination of decisions, by the Supreme Court, this Court, or the highest

court in Maryland, clearly establishing that, at the time of the incident, the officers’ actions

violated the Fourth Amendment. See Williams v. Ozmint, 

, 806 (4th Cir. 2013)

(affirming award of qualified immunity where plaintiff failed to “cite any case, or

combination of cases” that clearly established that challenged conduct violated

Constitution). Accordingly, the district court did not reversibly err in awarding the Public

Defendants qualified immunity on Kristen’s excessive force claim.

                                               2.

       Turning to Brieanna’s excessive force claim, we also review the decision to grant

summary judgment to the Public Defendants on that claim de novo, applying the same legal

standards as the district court. Roland v. U.S. Citizenship & Immigration Servs., 

625, 628 (4th Cir. 2017). “Summary judgment is appropriate only if taking the evidence

and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving

party, no material facts are disputed and the moving party is entitled to judgment as a matter

of law.” 

–96 (internal quotation marks omitted).

       Based on information obtained during discovery, Plaintiffs concede that the named

Public Defendants did not point their weapons at Brieanna or order her from the car.

Appellants’ Br. at 18. Nonetheless, Plaintiffs contend that the named defendants “were at

the scene” when unnamed officers removed Brieanna from her mother’s car and asked

Brieanna to speak with her grandmother. 

To that end, Plaintiffs now rely

primarily on a “bystander” theory of liability in advancing Brieanna’s claims against the

Public Defendants.

       Under the Fourth Amendment, bystander liability is “premised on a law officer’s

duty to uphold the law and protect the public from illegal acts, regardless of who commits

them.” Stevenson v. City of Seat Pleasant, 

, 416–17 (4th Cir. 2014) (internal

quotation marks omitted). To succeed under a bystander theory of liability, “a plaintiff

must demonstrate that a law enforcement officer (1) knew that a fellow officer was

violating an individual’s constitutional rights; (2) had a reasonable opportunity to prevent

the harm; and (3) chose not to act.” 

(alterations and internal quotation marks

omitted).

       Here, Plaintiffs argue that, “even if [the named Public Defendants] could not be

identified by Brieanna as taking any specific act of wrongdoing, they could still be held

liable under the theory of bystander liability.” Appellants’ Br. at 20. Specifically,
                                             11
Plaintiffs point to language in their Amended Complaint alleging that these defendants

“deprived and/or allowed plaintiffs to be deprived of” their Fourth Amendment rights.

Appellants’ Br. at 20 (quoting J.A. 23). The Public Defendants respond that Plaintiffs

failed to plead any bystander liability claim. However, we have made clear that, at the

pleading stage, plaintiffs are “not required to use any precise or magical words in their

pleading” to state a bystander liability claim. 

. Under that

liberal standard, Plaintiffs’ allegation that the Public Defendants “allowed” Brieanna’s

Fourth Amendment rights to be violated is sufficient to alert the Public Defendants to this

proposed alternative basis for relief.     See 

(explaining that, based on the

defendants’ “undisputed presence at the scene of the altercation and the allegation that the

officers ‘allow[ed] to be committed . . . unreasonable seizure[s],’ it requires no legal

gymnastics or finagling” to read the plaintiffs’ complaint as alleging a bystander liability

claim (alterations in original)).

       Nonetheless, we conclude that the district court did not err in awarding the Public

Defendants qualified immunity on Brieanna’s excessive force claim. Regarding Sergeant

Plummer, in particular, it is undisputed that he was not present at the time the officers

allegedly pointed their guns at Brieanna and Kristen, and that he left the scene soon after

the other officers began speaking with Brieanna.            Accordingly, Plaintiffs cannot

demonstrate that Sergeant Plummer either knew of the allegedly excessive force used in

relation to Brieanna or had an opportunity to prevent it, as required to establish a bystander

liability claim. See Thomas v. Holly, 533 F. App’x 208, 221−24 (4th Cir. 2013) (vacating

district court’s denial of defendants’ motions for summary judgment asserting qualified
                                             12
immunity on bystander liability claims where plaintiff presented no evidence to refute

defendants’ testimony that they did not witness the alleged application of excessive force);

Smith v. Ray, 409 F. App’x 641, 649 (4th Cir. 2011) (affirming grant of summary judgment

to defendants on bystander liability claims where defendant officers arrived at the scene

after the alleged use of excessive force).

       Viewing the evidence in the light most favorable to Brieanna, Lieutenant Henderson

and Deputy Stultz were in the immediate vicinity when the unnamed officers allegedly

pointed their guns at Brieanna and moved her away from Kristen’s car, and also were

present during the unnamed officers’ subsequent efforts to encourage Brieanna to speak

with her relatives. But even assuming the unnamed officers’ conduct violated the Fourth

Amendment—again, a question that we need not, and thus do not, address—the Public

Defendants are entitled to qualified immunity because Plaintiffs fail to identify any

decision, or combination of decisions, by the Supreme Court, this Court, or the highest

court in Maryland, putting Lieutenant Henderson and Deputy Stultz on notice that the

officers’ actions violated the Fourth Amendment. See 

. 2

       In sum, the undisputed facts establish that Sergeant Plummer is not liable under a

bystander liability theory because he was not present at the time the officers allegedly


       2
          To the extent that Brieanna’s constitutional claim derives from Plaintiffs’
allegation that she was subjected to false arrest during the alleged encounter, that claim is
foreclosed under our precedent. Indeed, Plaintiffs point to no evidence that Brieanna’s
“freedom of action [wa]s curtailed to a degree associated with formal arrest.” United States
v. Elston, 

, 319 (4th Cir. 2007). Similarly, even assuming the Public
Defendants’ efforts to encourage Brieanna to speak with her estranged relatives amounted
to an unlawful seizure, she fails to provide any authority demonstrating that the officers’
conduct violated clearly established law. See 

.
                                             13
pointed their guns at Brieanna and Kristen and that Lieutenant Henderson and Deputy

Stultz are entitled to qualified immunity. Accordingly, the district court did not reversibly

err in dismissing Brieanna’s federal claims against the Public Defendants.

                                              B.

       Having concluded that the district court did not err in dismissing Plaintiffs’

constitutional claims, we likewise affirm the dismissal of Plaintiffs’ related state-law

claims. As a general matter, federal district courts have jurisdiction over state-law “claims

that are so related to claims in [an] action within [their] original jurisdiction that they form

part of the same case or controversy.” 28 U.S.C. § 1367.

       However, courts may decline to exercise such jurisdiction when:

       (1)    the state-law claim raises a novel or complex issue of state law,
       (2)    the state-law claim substantially predominates over the claim or
              claims over which the district court has original jurisdiction,
       (3)    the district court has dismissed all claims over which it has original
              jurisdiction, or
       (4)    in exceptional circumstances, there are other compelling reasons for
              declining jurisdiction.

a district court’s decision to decline to exercise supplemental jurisdiction

for abuse of discretion. Jordahl v. Democratic Party of Va., 

, 203 (4th Cir.

1997); see also ESAB Grp. v. Zurich Ins., 

, 393 (4th Cir. 2012).

       In this case, the district court declined to exercise supplemental jurisdiction over

Plaintiffs’ state-law claims because, among other reasons, the state-law claims (1) “raise[d]

novel or complex issues of Maryland law” and (2) “ar[o]se from a domestic dispute over

which federal courts have traditionally declined (when possible) to exercise jurisdiction.”

J.A. at 364–65. When coupled with the fact that the district court properly dismissed
                                              14
Plaintiffs’ federal claims that served as the basis of the court’s original jurisdiction, 

Part II.A, these two bases provided an adequate basis for the district court to exercise

its discretion to decline to retain jurisdiction over Plaintiffs’ state-law claims, see Farlow

v. Wachovia Bank of N.C., N.A., 

, 316–17 (4th Cir. 2001) (discussing district

court’s discretion to dismiss pendant state-law claims without prejudice after resolving all

federal claims in defendant’s favor); see also Smith, 409 F. App’x at 651 (finding no abuse

of discretion in dismissal without prejudice of state tort claims upon dismissal of federal

claims). However, because the district court declined to wade into the merits of Plaintiffs’

state-law claims, dismissal of these claims should have been without prejudice. See

–17. Accordingly, we affirm the dismissal of Plaintiffs’ state-law

claims, but modify the district court’s order to clarify that the dismissal is without

prejudice.

                                              III.

       For the foregoing reasons, the judgment of the district court is affirmed as modified

to reflect that the dismissal of Plaintiffs’ state-law claims is without prejudice.



                                                                 AFFIRMED AS MODIFIED




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