Filed: Aug. 24, 2012
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1601 JOHN COOK, III, Individually, and as Administrator for the Estate of John Gideon Cook, IV; PATRICIA COOK; LINDA HAMMOND, parent and Guardian Ad Litem for Minor J.A.C.; DENISE BROWN, parent and Guardian Ad Litem for Minor J.C., Plaintiffs - Appellants, v. RAYMOND A. HOWARD, police officer (ID#C646); DWAYNE GREEN, police officer (ID#G716); BALTIMORE POLICE DEPARTMENT; FREDERICK H. BEALEFELD, Commissioner, Baltimore City
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1601 JOHN COOK, III, Individually, and as Administrator for the Estate of John Gideon Cook, IV; PATRICIA COOK; LINDA HAMMOND, parent and Guardian Ad Litem for Minor J.A.C.; DENISE BROWN, parent and Guardian Ad Litem for Minor J.C., Plaintiffs - Appellants, v. RAYMOND A. HOWARD, police officer (ID#C646); DWAYNE GREEN, police officer (ID#G716); BALTIMORE POLICE DEPARTMENT; FREDERICK H. BEALEFELD, Commissioner, Baltimore City P..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1601
JOHN COOK, III, Individually, and as Administrator for the
Estate of John Gideon Cook, IV; PATRICIA COOK; LINDA
HAMMOND, parent and Guardian Ad Litem for Minor J.A.C.;
DENISE BROWN, parent and Guardian Ad Litem for Minor J.C.,
Plaintiffs - Appellants,
v.
RAYMOND A. HOWARD, police officer (ID#C646); DWAYNE GREEN,
police officer (ID#G716); BALTIMORE POLICE DEPARTMENT;
FREDERICK H. BEALEFELD, Commissioner, Baltimore City Police
Department; JOHN BEVILAQUA, Colonel,
Defendants - Appellees,
and
CITY OF BALTIMORE; JOHN DOES 1-100,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cv-00332-JFM)
Argued: May 16, 2012 Decided: August 24, 2012
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Diaz wrote an
opinion dissenting in part and concurring in part.
ARGUED: Olugbenga Olatokumbo Abiona, Philadelphia, Pennsylvania,
for Appellants. William Rowe Phelan, Jr., Glenn Todd Marrow,
BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for
Appellees. ON BRIEF: George A. Nilson, City Solicitor,
BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
John Cook, III, individually and as administrator of the
estate of John Cook, IV (“Cook”), and various members of the
Cook family (collectively “the Appellants”), appeal from the
district court’s judgment against them on their claims against
the Baltimore City Police Department (“BCPD”) and several BCPD
officers. 1 The Appellants alleged claims pursuant to 42 U.S.C.
§§ 1983 and 1985 for violations of the Fourth and Fourteenth
Amendments arising from Cook’s death. They also sought to
recover damages under Maryland’s wrongful death and survival
statutes. The Appellants appeal numerous decisions of the
district court that resulted in the adjudication of all of their
claims in favor of the BCPD and the BCPD officers. For the
following reasons, we affirm the judgment of the district court.
I. Facts and Relevant Proceedings Below
A. Preliminary Factual Allegations
The light in which we review the facts varies based on the
stage of the proceedings at which the claims were resolved. For
claims dismissed at the motion to dismiss stage, we must accept
as true the well-pled facts in the complaint, viewed in the
1
The Appellants consist of Cook’s mother and father (John
Cook, III) as well as the mothers of Cook’s two minor children
(as parents and guardians ad litem for those children) and
Cook’s Estate.
3
light most favorable to the plaintiff. Brockington v. Boykins,
637 F.3d 503, 505 (4th Cir. 2011). For the claims resolved at
the summary judgment stage, we review the entire record before
us in the light most favorable to the non-moving party.
Merchant v. Bauer,
677 F.3d 656, 658 n.1 (4th Cir. 2012).
A straight-forward recitation of the Appellants’
allegations is complicated by changes made to those allegations
as the case proceeded. Those changes alter which defendant or
third party is purported to have engaged in certain conduct. At
times the allegations directly contradict each other. Far more
troubling, the Appellants persist in asserting facts and conduct
that lack any basis in the record or that are directly
contradicted by undisputed evidence in the record developed
during discovery. To say that the operative pleading (the
amended complaint) and the opening brief are poorly drafted is
to be generous. Consequently, we will initially provide only a
brief overview of the factual allegations behind the Appellants’
claims.
The allegations as pled are: On the afternoon of August 14,
2007, Cook, an African-American, came into proximity of two BCPD
plain-clothed officers who were on patrol in a Baltimore
neighborhood. As the officers approached Cook, they did not
identify themselves, and Cook, “[a]fraid for his life,” fled on
foot. (J.A. 76.) The officers pursued him. During the course
4
of the foot pursuit and subsequently alleged events, additional
BCPD officers responded to a request for assistance.
To evade the officers, Cook jumped over a chain-link fence
and hung onto the other side. The fence runs above a highway,
and the distance from the small concrete ledge at the base of
the fence to the highway is approximately seventy feet. One or
more BCPD officers is alleged to have shaken the fence with
sufficient force to cause Cook to lose his grip. Cook fell
first to the concrete ledge, which he hung from briefly before
falling onto the highway. Cook survived the initial impact, but
within moments of landing on the highway, a vehicle ran over
him, and he died at the scene. After Cook’s death, BCPD
officers at the fence were alleged to have high fived, laughed,
and referred to Cook using the “N” word. BCPD officers are then
alleged to have conspired to cover up the circumstances
surrounding Cook’s death by, among other things, conducting an
inadequate investigation and filing false reports related to his
death.
B. The Amended Complaint
In February 2010, the Appellants filed this action in the
District Court for the District of Maryland. The amended
complaint (which is the operative pleading for all issues on
appeal) was brought against the BCPD; BCPD Commissioner
5
Frederick Bealefeld, the highest ranking officer in the BCPD;
BCPD Colonel John Bevilaqua, the Chief of the BCPD detective
division; BCPD Officers Raymond A. Howard and Dwayne Green; and
“Defendants John Does 1-100.” 2 (J.A. 70-71.)
The amended complaint alleged five counts: Counts I and
III set forth claims under 42 U.S.C. §§ 1983 and 1985 against
the BCPD, Commissioner Bealefeld, and Colonel Bevilaqua for
violations of the Fourth and Fourteenth Amendments with respect
to the events surrounding Cook’s death. The amended complaint
asserted that the BCPD was liable for the conduct of its
officers and that its customs, practices, and policies
encouraged BCPD officers to violate the constitutional rights of
citizens, including Cook. Commissioner Bealefeld and Colonel
Bevilaqua (collectively the “supervisory officials”) were sued
under a theory of supervisory liability for the events
surrounding Cook’s death. Although the amended complaint is
unwieldy and difficult to parse, it also appears that these
defendants, or at least Colonel Bevilaqua, were alleged to have
violated Cook’s constitutional rights by conspiring to cover up
the events surrounding his death.
2
Several spellings of “Bevilaqua” and “Bealefeld” appear in
the briefs and record; for consistency, we use the spellings on
the docket sheet.
6
The amended complaint identified Officers Howard and Green
as the BCPD officers who initially approached Cook; it alleged
that they engaged in an “unlawful” pursuit of Cook and then both
shook the fence such that Cook fell from it. The amended
complaint also alleged that Officer Howard did “most of the
aggressive hitting of the fence that [Cook] hung on to,” engaged
in “high-fiving and laughing” following Cook’s death, used
racial epithets and inflammatory language, and engaged in a
physical altercation with Officer Howard Bradley because of the
epithets. Lastly, it asserted Officer Howard “filed a false
incident report and covered up the actual events at the scene,”
and participated in a conspiracy to cover up the events
surrounding Cook’s death. (J.A. 77-78.) Based on these factual
allegations against Officers Howard and Green, Count II set
forth claims under 42 U.S.C. §§ 1983 and 1985 for violations of
the Fourth and Fourteenth Amendments, and Counts IV and V
alleged survival and wrongful death actions under Maryland state
law. 3
3
As noted, the amended complaint also designated “John Does
1-100” as defendants; however, none of the counts specifically
referred to them.
7
C. Proceedings Below
The BCPD, Commissioner Bealefeld, and Colonel Bevilaqua
moved to dismiss the claims against them (Counts I and III)
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. The district court granted the motion,
concluding that the amended complaint did “not allege[]
sufficient facts to establish liability under Monell v.
Department of Social Services, 436 U.S. 658 (1978),” and that
the “conclusory allegations” were “clearly . . . insufficient
under” the standards set by the Supreme Court in Bell Atlantic
Corporation v. Twombly,
550 U.S. 544 (2007), and Ashcroft v.
Iqbal,
129 S. Ct. 1937 (2009). Lastly, it noted that the “only
facts relating to the alleged conspiracy pertain to events that
occurred after [Cook] was killed and therefore cannot, as a
matter of causation, provide a basis for” the Appellants’
claims. (J.A. 11.) The district court’s grant of the 12(b)(6)
motion disposed of all counts alleged against the BCPD and
supervisory officers.
In the intervening months the Appellants and Officers
Howard and Green engaged in discovery related to Counts II, IV,
and V. Relevant to this appeal, the district court granted the
BCPD’s motion to quash a request for production of documents
that the Appellants had served after the BCPD had been dismissed
from the case. The court’s order granted the motion based on
8
its conclusion that “the documents sought by [the Appellants]
are irrelevant to the claims that are now pending.” (J.A. 18.)
After the scheduling order’s deadline for making a motion
to amend the complaint had passed, the Appellants moved to amend
the pleadings in order to “substitute the names of [BCPD
Officers] Jared Fried and Angela Choi for defendants John Does 1
and 2.” (J.A. 19.) The district court denied the motion,
concluding that the Appellants had not demonstrated good cause
for the amendment.
Officers Howard and Green then moved for summary judgment
on each claim against them. Upon consideration of the parties’
arguments, the district court granted the motion. The court
recognized remaining factual disputes in the record, but
determined that none were “material” to resolving the issues in
the case. Reviewing the §§ 1983 and 1985 claims against
Officers Howard and Green, the district court concluded that the
facts did not support the Appellants’ contention that they had
violated either Cook’s or the Appellants’ Fourth or Fourteenth
Amendment rights. The district court also held that the state
law claims were barred because the Appellants failed to comply
with the notice requirements of Maryland’s Local Government Tort
Claims Act, Md. Code Ann., Cts. & Jud. Proc. Art. § 5-304(a).
The Appellants noted a timely appeal, and we have
jurisdiction under 28 U.S.C. § 1291.
9
II.
The Appellants raise numerous arguments that can be boiled
down to four central issues, namely, whether the district court:
(1) erred in granting the motion to dismiss Counts I and III
because the allegations in the amended complaint were
sufficiently pled; (2) abused its discretion in granting the
motion to quash the request for production of documents by
relying on an improper basis for its decision or, alternatively,
by misapplying it; (3) abused its discretion in denying the
motion to substitute Officers Fried and Choi because such
motions should be liberally granted and the Appellants had shown
good cause to allow the amendment; and (4) erred in granting the
motion for summary judgment as to Counts II, IV, and V because
there remained numerous genuine issues of material fact for a
jury to resolve and the forecasted evidence was such that a jury
could have found in the Appellants’ favor as to each remaining
claim.
Having reviewed each of the parties’ arguments and the
record, we conclude that the district court did not commit
reversible error in this case. We address below those arguments
warranting further discussion and affirm the judgments of the
district court.
10
A. Rule 12(b)(6) Dismissal of Counts I and III
The Appellants contend the district court erred in granting
the motion to dismiss Counts I and III — the §§ 1983 and 1985
claims against the BCPD, Commissioner Bealefeld, and Colonel
Bevilaqua — for failure to state a claim. They assert that the
district court improperly applied a heightened pleading standard
beyond what is required under federal notice pleading. To
advance their argument, the Appellants rely heavily on the
Supreme Court’s explanation of those principles in Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163 (1993), and this Court’s decision in Jordan by Jordan
v. Jackson,
15 F.3d 333 (4th Cir. 1994). They claim that
dismissal was inappropriate because the amended complaint
sufficiently alleged facts that, if proven with specific
evidence following discovery, would show that the BCPD,
Commissioner Bealefeld, and Colonel Bevilaqua could be held
liable under §§ 1983 and 1985 for the events surrounding Cook’s
death.
We review de novo a district court’s Rule 12(b)(6)
dismissal, “focus[ing] only on the legal sufficiency of the
complaint,” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008), and “accepting as true the well-pled facts in the
complaint and viewing them in the light most favorable to the
plaintiff.”
Brockington, 637 F.3d at 505.
11
Federal Rule of Civil Procedure 8(a)(2) states that a
pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Curiously, the
Appellants make no attempt to demonstrate that it satisfied the
Supreme Court’s explanations of Rule 8(a)(2)’s requirements as
set forth in Twombly and Iqbal, and which were the primary
grounds upon which the district court relied. Instead, they
rely on pre-Twombly and Iqbal cases such as Leatherman and
Jordan. While Leatherman held that § 1983 claims are not
subject to a heightened pleading standard and Jordan applied
that holding in this Circuit, claims brought in federal court
are also subject to the generally applicable standards set forth
in the Supreme Court’s entire Rule 8(a) jurisprudence, including
Twombly and Iqbal. As we have previously recognized, these
later “decisions require more specificity from complaints in
federal civil cases than was heretofore the case.” Robertson v.
Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012).
Pursuant to Twombly and Iqbal, a complaint will survive a
motion to dismiss only if it contains factual allegations in
addition to legal conclusions. Factual allegations that are
simply “labels and conclusions, and a formulaic recitation of
the elements of a cause of action” are not sufficient. Twombly,
550 U.S. at 555. In addition, the complaint must contain
“enough facts to state a claim to relief that is plausible on
12
its face.” Id. at 570. That is to say, the factual allegations
must “be enough to raise a right to relief above the speculative
level.”
Id. at 555. Instead, the allegations must be
sufficient to “permit the court to infer more than the mere
possibility of misconduct” based upon “its judicial experience
and common sense.”
Iqbal, 550 U.S. at 679. For these reasons,
courts “need not accept the legal conclusions drawn from the
facts [alleged in a complaint], and [they] need not accept as
true unwarranted inferences, unreasonable conclusions, or
arguments.”
Giarratano, 521 F.3d at 302 (internal quotation
marks omitted).
We agree with the district court that the amended complaint
does not satisfy these requirements. The amended complaint
suffers from a number of infirmities with respect to the claims
against the BCPD. Most strikingly, it repeatedly sets forth
legal conclusions masquerading as factual allegations. Indeed,
at times, the amended complaint misstates what the law is with
respect to Monell and supervisory liability, thus pleading not
only legal conclusions as opposed to fact, but inaccurate legal
conclusions at that. The district court appropriately did not
credit those portions of the amended complaint. Just as
troubling, the amended complaint parrots the language of various
legal theories without stating any facts to demonstrate that
type of conduct. In so doing, the amended complaint “tenders
13
naked assertions devoid of further factual enhancement,” Iqbal,
556 U.S. at 678 (internal quotation marks, alterations, and
citation omitted), and is merely a “[t]hreadbare recital[] of
the elements of a cause of action, supported by mere conclusory
statements,” which are not sufficient to survive a motion to
dismiss.
Id. at 678 (citation omitted). Lastly, where the
amended complaint alleges actual facts, those facts are either
irrelevant to establishing a viable § 1983 or 1985 claim, or,
where on point, do not “state[] a plausible claim for relief,”
id. at 679, because they do not “raise a right to relief above
the speculative level.”
Twombly, 550 U.S. at 555.
With respect to Commissioner Bealefeld and Colonel
Bevilaqua’s liability as supervisory officers, the amended
complaint’s assertions boil down to contending that because
Cook’s death occurred at a time when they were supervisors of
BCPD officers, they have imputed knowledge of their
subordinates’ conduct and should be held liable for it. Simply
put, the amended complaint does not set forth facts that raise
beyond the level of speculation any claim of entitlement to
relief under § 1983 or 1985 founded on a theory of supervisory
14
liability. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)
(stating the three elements to establish supervisory liability). 4
For the reasons set forth above, we conclude the district
court did not err in granting the BCPD and supervisory
officials’ motion to dismiss the claims against them.
B. Motion to Quash and Motion to Substitute
The Appellants next claim the district court abused its
discretion in granting the BCPD’s motion to quash a request for
production of documents and in denying a motion to substitute
Officers Fried and Choi. 5 See In re Grand Jury Subpoena, 646
F.3d 159, 164 (4th Cir. 2011) (stating standard of review for a
4
We also agree with the district court that even accepting
the scant factual allegations of a conspiracy as true, the
amended complaint simply does not set forth a viable cause of
action for a conspiracy to violate Cook’s rights by covering up
the circumstances of his death given that the alleged conspiracy
formed only after Cook died. Nor did Cook set forth facts
sufficient to survive a motion to dismiss that would support the
conclusion that any such conspiracy was motivated by race.
Thus, those allegations could not implicate Cook’s
constitutional rights or set forth a basis for relief under §
1985 as a matter of law. See Simmons v. Poe, 47 F.3d 1370,
1376-77 (4th Cir. 1995) (stating the elements of a cause of
action under § 1985(3)).
5
The “motion to substitute the names of Jared Fried and
Angela Choi for defendants John Does 1 and 2” sought to do much
more than simply substitute these named parties for John Does.
For this reason, it would more appropriately be termed a motion
to file a second amended complaint and join party defendants.
Nonetheless, the standard of review for each motion is the same;
for consistency, we refer to it as the “motion to substitute.”
15
motion to quash); US Airline Pilots Ass’n v. Awappa, LLC, 615
F.3d 312, 320 (4th Cir. 2010) (stating standard of review for a
motion to amend a complaint).
1. Motion to Quash
After the BCPD had been dismissed from the case, the
Appellants served it with a request for production of documents.
The request encompassed a range of materials, from all materials
relating to Cook’s death to documents regarding BCPD officer
training procedures, performance monitoring, and allegations of
police misconduct from the general public. (J.A. 91-93.) The
request set a compliance date of October 15. 6 (J.A. 91-93.)
The BCPD moved to quash the request for production of
documents, asserting that the vast majority of the documents
requested were only relevant to the dismissed claims against the
BCPD or were not discoverable under state privilege laws. It
also indicated it would “produce non-privileged, non-
disciplinary/personnel related responsive documents in its
possession, custody, or control that pertain specifically to the
facts and circumstances of the August 14, 2007 incident.” (J.A.
6
Specifically, the request demanded that the BCPD
“produce[] for inspection and photocopying the documents
described below, at 10:00 a.m., Friday, October 15, 2010, at its
headquarters . . . .” (J.A. 89.)
16
178 n.2.) Over the Appellants’ objections, the district court
granted the motion to quash, stating that it was “fully
satisfied that the documents sought by [the Appellants] are
irrelevant to the claims that are now pending. Therefore, the
[BCPD] should not be put to the expense that would be required
to assemble the documents requested by [the Appellants].” (J.A.
18.)
On appeal, the Appellants contend that the district court
abused its discretion in granting the motion to quash because
the ground relied upon – “relevance” to the underlying claims –
is not a proper basis to quash a subpoena served on a non-party.
They assert that the BCPD lacked “standing to tell [the
Appellants] what documents [they] may use in support of their
claims.” (Opening Br. 39.) And they note that because
discovery is permitted not only of information that could be
admissible, but also of information that may lead to the
discovery of admissible evidence, the district court abused its
discretion in granting the motion. Lastly, they contend that
the documents pertaining to the events of August 14 would have
aided them in discovering the identities of other BCPD officers
who were present at the scene. (Opening Br. 38-42.)
We are not persuaded that the district court abused its
discretion in granting the motion to quash. Federal Rule of
Civil Procedure 26 governs discovery and provides as a general
17
matter that parties “may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense . . . .” R. 26(b)(1). Relevance is thus the foundation
for any request for production, regardless of the individual to
whom a request is made. That the BCPD was no longer a party to
the case did not make relevance of the materials requested an
inappropriate factor for the court to consider. See Misc. Dkt.
Matter 1 v. Misc. Dkt. Matter 2, 197 F.3d 922, 925 (8th Cir.
1999) (discussing factors to be considered in discovery against
third parties, including relevance). Although Rule 45(c) sets
forth additional grounds on which a subpoena against a third
party may be quashed, taking into consideration facts peculiar
to their status as a non-party, those factors are co-extensive
with the general rules governing all discovery that are set
forth in Rule 26. 7
District courts are afforded broad discretion with respect
to discovery generally, and motions to quash subpoenas
specifically. The overwhelming majority of the materials the
Appellants sought were directed at matters related to the
7
We further note that Rule 45(c)(3) requires courts to
quash a subpoena that “subjects a person to undue burden”
(45(c)(3)(A)(iv)). This ground encompasses situations where the
subpoena seeks information irrelevant to the case or that would
require a non-party to incur excessive expenditure of time or
money, factors on which the district court’s order expressly
relied.
18
dismissed claims against the BCPD. Documents and records
containing the BCPD’s training materials, performance reviews,
internal investigation procedures, and all other allegations of
misconduct for a ten-year period have no correlation to the
claims against Officers Howard and Green. While the Appellants
assert that these materials may have led to discovery of
admissible evidence, they present no intelligible explanation of
how that is so, nor can we detect any; the requests have every
indicia of the quintessential fishing expedition.
The materials requested that related to Cook’s death are
more problematic given that they at least had some connection to
the remaining claims in the case. However, it is not our task
to substitute our judgment for that of the district court, but
rather to assess “whether the [district] court’s exercise of
discretion, considering the law and the facts, was arbitrary or
capricious.” United States v. Mason, 52 F.3d 1286, 1289 (4th
Cir. 1995) (citation omitted). As we have previously stated:
The purpose of standards of review is to focus
reviewing courts upon their proper role when passing
on the conduct of other decisionmakers. Standards of
review are thus an elemental expression of judicial
restraint, which, in their deferential varieties
safeguard the superior vantage points of those
entrusted with primary decisional responsibility. . .
. At its immovable core, the abuse of discretion
standard requires a reviewing court to show enough
deference to a primary decisionmaker’s judgment that
the court does not reverse merely because it would
have come to a different result in the first instance.
19
Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,
320-21 (4th Cir. 2008).
Our review necessarily focuses on the information available
to the district court at the time of its decision. The totality
of those circumstances leads us to conclude that the court did
not act arbitrarily or capriciously in granting the motion to
quash. As detailed above, the Appellants’ request for
production of documents sought an inordinate array of documents
from a non-party in comparison to a limited number that may have
been responsive and relevant to the remaining claims. In
opposing the motion to quash, the Appellants did not request a
modification of the request for production, but persisted at
length in their assertion that all of the documents were
necessary to their case. Furthermore, the BCPD’s motion to
quash conceded the discoverability of a small number of
documents and voluntarily agreed to provide those documents to
the Appellants.
As the dissent notes, a district court has the authority to
quash or modify a subpoena duces tecum pursuant to Federal R.
Civil Procedure 45(c)(3). At no time in opposing the motion to
quash, or even on appeal in this Court, have the Appellants
suggested such an alternative. Nor did the BCPD recommend such
a course. The district court decided the matter based on the
positions taken and arguments advanced by each party. Such a
20
course is neither arbitrary or capricious. That the district
court could also have acted within its discretion by undertaking
a different course of action — i.e., sua sponte modification of
the request rather than outright quashing — does not make its
selected course an abuse of discretion. See Regan-Touhy v.
Walgreen Co., 526 F.3d 641, 653 (10th Cir. 2008) (“[W]e cannot
see how the district court abused its considerable discretion in
its resolution of the parties’ discovery disputes given the
nature of the requests at issue and the state of the record
before the court at the time.”). On this record, we cannot
conclude that the district court acted arbitrarily or
capriciously in granting the motion to quash.
2. Motion to Substitute
On November 30, the Appellants moved to substitute Officers
Fried and Choi as party defendants “John Does 1 and 2.”
Attached to the motion was a proposed second amended complaint,
which contained the desired “substitutions.” The proposed
second amended complaint identifies Officers Fried and Choi as
the BCPD officers who initially approached and pursued Cook; it
alleges that Officer Green thereafter joined the foot pursuit,
and that Officers Fried and Green took turns hitting the fence
prior to Cook’s fall. And it alleges that Officers Fried and
Choi were “high-fiving and laughing” after Cook’s death, and
21
that Officer Bradley engaged in a physical altercation with
Officer Fried. In sum, the Appellants now alleged that Officer
Green participated in some — but not as much — of the conduct
allegedly preceding Cook’s death, while Officer Howard was no
longer alleged to have been present during any of those events.
The only remaining claim against Officer Howard was that he
participated in a post-death conspiracy to cover up the other
BCPD officers’ misconduct by filing a false report. 8
The district court denied the motion to substitute. At the
outset, the court noted that the motion was filed seven weeks
after the October 12 deadline set in the scheduling order for
amending the pleadings and joining parties, and under the
language of the scheduling order, could only be granted upon a
showing of good cause. The court rejected the Appellants’
contention that they had demonstrated good cause based on its
determination that the Appellants “ha[d] no one but themselves
to blame for the untimeliness” in light of the length of time
between the August 14, 2007 incident and the October 12, 2010
amendment deadline and long periods of inaction during which
8
Based on these changed factual allegations, the proposed
second amended complaint adds Officers Fried and Choi to the
Count II §§ 1983 and 1985 causes of action based on deprivations
of Fourth and Fourteenth Amendment rights. It also adds
Officers Fried and Choi to and removes Officer Howard from the
state law claims asserted in Counts IV and V.
22
they could have learned the officers’ identities before the
deadline or preserved the opportunity to do so by requesting a
later amendment deadline before that deadline expired. (J.A.
20.)
The Appellants assert the district court abused its
discretion in denying the motion to substitute. They maintain
both that Federal Rule of Civil Procedure 15(a) “evinces a bias
in favor of granting leave to amend” that the district court
ignored and that they have shown good cause for not meeting the
amendment deadline. They also challenge the district court’s
factual determination that they could have discovered the
identities and pertinent role of Officers Fried and Choi prior
to the October 12 deadline for amending the complaint.
We have thoroughly reviewed the record with respect to the
timing and implications of the relevant events, and conclude
that the district court did not abuse its discretion in denying
the motion to substitute. To the extent the Appellants contend
the district court held them to a higher bar for amendment than
Rule 15 provides, they fundamentally misunderstand the standard
by which their motion was reviewed. Rule 15(a)(2) articulates a
relatively liberal amendment policy, in which leave to amend
should be “freely give[n] when justice so requires.” That rule
applies, however, prior to the entry of a scheduling order, at
which point, under Rule 16(b)(4), a party must first demonstrate
23
“good cause” to modify the scheduling order deadlines, before
also satisfying the Rule 15(a)(2) standard for amendment. See
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298-99 (4th Cir.
2008); see also O’Connell v. Hyatt Hotels of Puerto Rico,
357
F.3d 152, 155 (1st Cir. 2004) (describing the interplay between
these rules). Even apart from the federal rules, the scheduling
order in this case specifically stated that “good cause” would
be required to amend the pleadings at any point after the
October 12 deadline. The district court thus appropriately held
the Appellants to the “good cause” standard.
We also conclude that the district court did not abuse its
discretion in finding that the Appellants had not demonstrated
“good cause” for the untimely motion to substitute. “Good
cause” requires “the party seeking relief [to] show that the
deadlines cannot reasonably be met despite the party’s
diligence,” and whatever other factors are also considered, “the
good-cause standard will not be satisfied if the [district]
court concludes that the party seeking relief (or that party’s
attorney) has not acted diligently in compliance with the
schedule.” See 6A Charles Alan Wright, Arthur R. Miller, and
Mary Kay Kane, Federal Practice and Procedure Civ. 3d § 1522.2
(3d ed. 2010) (collecting cases); see also 3 Moore’s Federal
Practice § 15.14[1][b], at 16-72 (Matthew Bender 3d ed. 2010)
(“[A]lthough undoubtedly there are differences of views among
24
district judges about how compelling a showing must be to
justify extending the deadlines set in scheduling orders, it
seems clear that the factor on which courts are most likely to
focus when making this determination is the relative diligence
of the lawyer or lawyers who seek the change.”). Each of the
Appellants’ arguments as to why good cause exists rings hollow
in light of the record before us. That record provides an ample
basis from which the district court could conclude that the
Appellants had not been diligent in pursuing the identities of
additional BCPD officers they believed to be part of the alleged
events surrounding Cook’s death.
Contrary to the Appellants’ assertion and the conclusion
reached by the dissenting opinion, the district court’s earlier
grant of the motion to quash the request for production of
documents did not directly bring about the Appellants’ inability
to timely acquire information about Officers Fried and Choi’s
alleged presence and participation in the events of August 14.
This is so, in part, because the request for production
intentionally listed a compliance date of October 15, three days
past the October 12 amendment deadline. The record clearly
shows the Appellants were aware of the proposed October 12
deadline when they set the October 15 return date. Yet during
the scheduling order conference, the Appellants did not request
a later amendment deadline in order to allow time to review any
25
materials they received in response to the request for
production. Thus, even if the motion to quash had been denied
in full or in part, the Appellants still would not have required
the BCPD to produce the requested materials before the amendment
deadline. 9
Moreover, at no time after the motion to quash had been
granted did the Appellants make a timely motion to amend the
scheduling order deadline. 10 This is so despite the scheduling
order’s clear directive that deadlines would be strictly
enforced and altered only if “good cause” had been shown. The
Appellants have offered absolutely no explanation for why they
did not file a timely motion to amend the scheduling order
9
The district court did not rely on the length of time
between the amendment deadline and the filing of the motion to
substitute (a seven-week gap) as a factor in determining whether
the Appellants had demonstrated good cause. Instead, the
district court relied on the significant amount of time between
the August 14, 2007 incident and the filing of the motion, as
well as the Appellants’ failure to diligently pursue the matter
between the February 2010 filing of the case and the filing of
the motion to substitute. The district court’s stated reasons
for holding the Appellants responsible for the delay and finding
they lacked diligence would not appear to have altered
significantly had the district court received an untimely, but
less untimely, motion to substitute and amend in the event the
motion to quash had been denied. See also infra at pp. 33-35.
10
Although the Appellants eventually moved to amend the
scheduling order deadline, they did so after moving to
substitute Officers Fried and Choi, and only once the issue was
raised in Officers Howard and Greens’ response to that motion.
The district court eventually denied that motion for the same
grounds it denied the motion to substitute.
26
deadline once it became clear that sufficient discovery would
not be completed in time to meet the October 12 deadline. 11
Lastly, the record shows an overall lack of diligence on
the Appellants’ part, which the district court appropriately
relied on in making its decision. As the district court noted,
the Appellants did not file this case until approximately two-
and-a-half years after the events in question. The initial and
amended complaints expressly contemplated the addition of other
BCPD officers as party defendants based on the inclusion of
defendants “John Does 1-100,” and the reference to other unnamed
BCPD officers throughout the description of the events
underlying the Appellants’ claims. For the almost-seven-month
period between filing suit and first seeking a request for
production, the Appellants made no effort whatsoever to pursue
limited discovery to identify any other BCPD officers who may
have participated in any of the alleged events. 12
11
When expressly asked about this point during oral
argument, the Appellants’ attorney noted only that he did not
know at the time the scheduling order deadlines were set whether
he would need more time. He offered no explanation for his
failure to seek a timely modification in light of subsequent
events and the approach of the amendment deadline.
12
Contrary to the Appellants’ protestations that they could
not undertake discovery until after the scheduling order was
filed, the local rules permit discovery at an earlier time as
“ordered by the court or agreed upon by the parties.” Local
Rule 104.4.
27
The failure to pursue limited discovery for this purpose
was not attributable to the Appellants not knowing the identity
of individuals who had relevant information. The record shows
that at the time they filed suit, the Appellants knew the
identities of at least five individuals who had information
relevant to the events of August 14: BCPD Officers Howard,
Green, and Bradley; BCPD supervisory officer Colonel Bevilaqua;
and eyewitness Shamika Summers. 13 These facts underscore the
Appellants’ lack of diligence throughout the proceedings in
identifying “known unknown” individuals who might be part of
their case. As the Eleventh Circuit has stated:
The lack of diligence that precludes a finding of good
cause is not limited to a plaintiff who has full
knowledge of the information with which it seeks to
13
The Appellants had obtained a copy of Officer Howard’s
accident report as early as October 2007. That report
identifies Colonel Bevilaqua as the highest ranking officer
present at the scene of the investigation into Cook’s death. It
identifies Officer Green as the police officer who initiated the
foot pursuit with Cook and provides Officer Green’s telephone
number and address. It also identifies Officer Howard as the
“reporting” officer and includes his address and telephone
number.
Although it is not clear from the record when the
Appellants first learned of eyewitness Shamika Summers’
knowledge of the incident, the Appellants’ private investigator
took her statement in November 2009, also well before filing
suit. Her statement includes a description of the BCPD Officer
she alleged shook the fence. Although she did not identify him
by name at that time, in her deposition taken after the
expiration of the amendment deadline, she identified Officer
Fried as that officer. This information unequivocally shows the
Appellants had notice of individuals who would have further
details of the incident.
28
amend its complaint before the deadline passes. That
lack of diligence can include a plaintiff’s failure to
seek the information it needs to determine whether an
amendment is in order.
See S. Grouts & Mortars v. 3M Co., 575 F.3d 1235, 1241 n.3 (11th
Cir. 2009).
Despite the Appellants knowing there were as-yet-
unidentified individuals involved in the events they alleged
occurred on August 14, and despite their expressed desire to
include these “John Doe” police officers as party defendants in
their case, the Appellants did not pursue any discovery that
would have allowed them to file a timely amendment of the
complaint. The Appellants, and to some degree the dissent,
counter that until November 2010 they were not aware that named
party defendants Officer Howard and Green were not the officers
involved in the foot pursuit and that Officers Fried and Choi
were present at that time. This argument goes to the
significance of the amendments they sought to make. It does
not, however, bear on the lack of diligence in the first
instance.
It is true that Officer Howard’s accident report appears to
have mistakenly named Officer Green as the officer involved in
the initial foot pursuit. However, nothing in Officer Howard’s
report suggests that the Appellants were correct in asserting
that Officer Howard had been present for or a participant in any
29
of the events leading up to Cook’s death. Moreover, as
discussed, the amended complaint charged additional unknown BCPD
officers with participating in various other key parts of the
claimed unlawful activity. The Appellants thus clearly believed
other individuals were involved as well and had information that
put them on notice that they may need to amend their complaint
in light of facts revealed during discovery. But they did not
pursue any of these “known unknowns” in the case in a manner
that would have permitted them to make a timely amendment. On
this record, they cannot now succeed in complaining that their
lack of diligence should be excused because they did not realize
the unidentified individuals in their action would not just be
added to their existing claims but would also alter the nature
of (if not eliminate) their claims with respect to Officers
Howard and Green.
The record also demonstrates that the Appellants’ failure
to pursue limited – or earlier – discovery mattered for purposes
of identifying Officers Fried and Choi because had that been
pursued, the Appellants almost certainly could have ascertained
their presence and role significantly earlier than they did.
For example, eyewitness Shamika Summers and Officer Bradley both
identified Officer Fried in their depositions. Indeed, Officer
Bradley indicated in his deposition testimony that he had met
Cook’s Fiancée, Appellant Hammond, prior to the events of August
30
14, and that he visited her shortly after Cook’s death to
describe the events of that day to her, including the alleged
participation of Officer Fried. 14 In addition, Officers Howard
and Green both identified Officers Fried and Choi as being
present on August 14 in their responses to interrogatories.
And, as discussed elsewhere in this opinion, Officer Howard
denied being present at the scene until after Cook’s death; had
the Appellants questioned Officer Howard for the purpose of
ascertaining his knowledge of other individuals’ roles in the
events leading up to Cook’s death, they would have necessarily
discovered why he could not answer those questions and could
have timely pursued additional information to determine the
identity of the officers who were actually involved in the
pursuit as well.
The Appellants’ failure to seek information from any one of
these witnesses at an earlier date meant that they could not
pursue any leads those witnesses provided in time to make a
14
The uncontested evidence shows that Hammond knew Officer
Bradley had additional information about who may have been
present and involved in the August 14 incident. As such, the
Appellants could have deposed him earlier in an effort to
identify additional participants to the events. Had they done
so, Officer Bradley could have led them to Officer Fried and, in
turn, to Officer Choi. Yet the Appellants elected not to depose
Officer Bradley until November 30, well after the October 12
deadline for amending the pleadings, despite being privy to this
opportunity at least three years earlier.
31
timely amendment. In view of these readily apparent avenues
available to the Appellants and yet left entirely unexplored,
they have merely evinced an earlier desire to know something and
have not demonstrated they acted—with diligence or otherwise—in
timely pursuing that knowledge. See Millennium Partners, L.P.
v. Colmar Storage, LLC, 494 F.3d 1293, 1299 (11th Cir. 2007)
(holding that good cause did not exist where movant was on
notice of information that, “with some investigation,” would
have led to timely discovery of the basis for the motion to
amend); Trustmark Ins. Co. v. General & Cologne Life Re of
America,
424 F.3d 542, 553 (7th Cir. 2005) (same). 15
The partial dissent focuses on a perceived “domino effect”
that the grant of the motion to quash had on the timing of the
motion to substitute and the district court’s analysis of the
latter motion. It speculates that the Appellants may have
received salient information from the BCPD prior to the
amendment deadline, or at the very least any motion to
substitute could have been less untimely. It is pure conjecture
to suggest that the Appellants may have acquired any information
sought in the request for production prior to October 15,
15
We reject the Appellants’ assertion that the BCPD
intentionally concealed the identities of Officers Fried and
Choi until after the amendment deadline. There is simply no
evidence in the record to support that allegation; it is only
rank speculation on the part of the Appellants.
32
particularly in light of language of the request itself. But
even assuming, arguendo, that the district court abused its
discretion with respect to the motion to quash, that assumption
would only mean that the BCPD would have been required to
produce the requested documents—including Officers Fried and
Choi’s police reports—by October 15, the delinquent deadline the
Appellants knowingly set. Any motion to amend based on those
documents would still have been subject to the higher “good
cause” standard set forth above, based on both Fed. R. Civ. P.
16(a) and the plain terms of the scheduling order. “Good cause”
would still require the Appellants to demonstrate, at bottom,
that they had exercised diligence in obtaining the information
but that they were nonetheless unable to comply with the
scheduling order deadline.
Nothing in the district court’s “good cause” analysis would
have changed given that the court identified four specific
reasons for concluding that the Appellants had demonstrated an
overarching and persistent lack of diligence throughout the
case. While the dissent theorizes on the district court’s
“general frustration . . . with various other delays” in the
case, post at 60 n.22, the district court’s reasoning is
precisely the appropriate analysis to determine the existence of
“good cause.” That is, in considering whether “good cause”
excuses compliance with a scheduling order deadline, the
33
district court must examine whether the movant had been
diligent, though unsuccessful, in attempting to acquire the
information that would have formed the basis of a timely motion
to amend. To be sure, the movant’s conduct in the period
between the deadline and the untimely motion is also relevant to
showing continued diligence in acquiring the information. But
the court’s focus is appropriately and necessarily on the
movant’s overall conduct of the case, and in particular what
action led to missing the scheduling order’s deadline. See,
e.g., Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 348
(5th Cir. 2008) (“‘Good cause’ . . . requires a party to show
that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.”) (internal
quotation marks omitted); Leary v. Daeschner,
349 F.3d 888, 907
(6th Cir. 2003) (holding that to show “good cause” a movant must
demonstrate “that despite their diligence they could not meet
the original deadline”); Sosa v. Airprint Systems, Inc.,
133
F.3d 1417, 1419 (11th Cir. 1998) (per curiam) (holding that good
cause did not exist where counsel waited months after filing of
the pleadings to propound written discovery and did not take
oral depositions of known key individuals to their claims until
after the deadline for amending the complaint).
As noted, the Appellants alleged from the outset of the
case that as-yet-unknown BCPD officers were present during and
34
participated in the events they asserted to have caused Cook’s
death. As of late 2007, the Appellants knew the identities of
several witnesses who could have provided information about the
events of August 14 that could have led them to learn the
identities and alleged roles of Officers Fried and Choi. Yet
they completely failed to pursue any limited or otherwise timely
discovery to obtain information about the “known unknown”
individuals they believed could be potential defendants in their
case. They also knowingly selected a return date on the request
for production that was after the amendment deadline. The
Appellants never asked for that deadline to be altered prior to
its passing and offer no explanation for their failure to do so.
None of these factors have anything to do with the district
court’s earlier grant of the motion to quash, which, had it been
denied in full or part, at most would have allowed the
Appellants to file a less untimely motion to substitute. Every
other factor—and significantly, every factor the district court
relied on, and every factor relevant to showing diligence in
meeting the October 12 deadline—would be unaltered. For this
reason, we conclude that the district court’s decision with
respect to the motion to quash did not have a harmful “domino
effect” on the events surrounding the Appellants’ motion to
substitute.
35
In addition to all of the reasons set forth above
supporting the district court’s decision, we are also ever
mindful that our standard of review gives the district court
great deference, even if it is not always an insurmountable
hurdle. Having conducted that review, we conclude the district
court did not abuse its discretion in determining that the
Appellants’ repeated lack of diligence precluded a finding of
good cause to excuse the untimely motion to substitute. Our
review of the totality of the events surrounding both the grant
of the motion to quash and the denial of the motion to
substitute leads us to hold that the district court did not
abuse its discretion in ruling on either motion.
C. Claims Against Officers Howard and Green
When the dust settled from the earlier motions and orders
in this case, Officers Howard and Green moved for summary
judgment as to all claims remaining against them, which the
district court granted. The Appellants contend the award of
summary judgment was improper because there remained genuine
issues of material fact, which if resolved in their favor,
presented sufficient “evidence from which a jury could find that
police officers Howard and Green committed act[s] that caused
the deprivation of” Cook’s and the Appellants’ rights under the
36
Fourth and Fourteenth Amendments. (Opening Br. 51.) We
disagree.
Under Federal Rule of Civil Procedure 56(a), a district
“court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” In
undertaking our de novo review of the district court’s grant, we
view the facts in the light most favorable to the Appellants,
and draw all reasonable inferences in their favor. Scott v.
Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Ricci v.
DeStefano,
557 U.S. 557, ___, 129 S. Ct. 2658, 2677 (2009)
(quotation marks and citation omitted).
1. Claims Regarding Events Leading Up To Cook’s Death
The Appellants contend there is an unresolved question of
fact as to Officer Green’s location during the events of August
14. Officer Green testified during his deposition that he
arrived only at the “highway level” after Cook’s death, and
there is additional evidence in the record to support this
testimony. However, during her deposition, eyewitness Shamika
Summers identified Officer Green as the African-American officer
she saw pursuing Cook on foot and then present at the fence
37
above the highway after Cook climbed over it and before he fell.
Some additional evidence tends to support this testimony,
including Officer Howard’s accident report, which lists Officer
Green as the BCPD officer who approached and pursued Cook, and
was present at the fence when Cook fell. (Opening Br. 52-53.)
We have reviewed the evidence the Appellants point to and
agree with the district court that although there remains a
question of fact as to Officer Green’s location, that question
is not material. “Facts are ‘material’ when they might affect
the outcome of the case, and a ‘genuine issue’ exists when the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party.” News & Observer Publ’g Co. v. Raleigh-
Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)
(citation omitted); Hawkspeare Shipping Co. v. Intamex, S.A.,
330 F.3d 225, 232 (4th Cir. 2003) (“There is a material dispute
of fact when the fact’s existence or non-existence could lead a
jury to different outcomes.”). Under this standard, the
Appellants must present evidence that Officer Green engaged in
conduct that violated Cook’s Fourth and Fourteenth Amendment
rights, wherever he was located. As explained presently,
however, even if we assume he participated in the foot pursuit
and was present at the fence prior to Cook’s death, the
Appellants have failed to create a genuine issue of material
fact with respect to what Officer Green did.
38
The only evidence in the record that the Appellants offer
to establish Officer Green’s conduct is Summers’ deposition
testimony and Officer Howard’s accident report. The report
simply states that after Cook leapt over the fence, he “lost his
hand-hold before Officer Green could get to him, and Cook fell
the 70 feet to the concrete roadway below.” (J.A. 972.)
Summers, meanwhile, stated that she observed Caucasian police
officers shaking the fence, and that the one African-American
BCPD officer present at the scene was not shaking the fence, but
was trying to coax Cook to safety before he fell. Like the
accident report, Summers’ deposition statement does not create a
genuine issue of material fact as to Officer Green’s conduct.
Even if the Appellants were able to establish that Officer Green
was present at the fence and was the African-American BCPD
officer Summers saw there, the Appellants have not created a
genuine issue of material fact with regard to what he did there.
Accordingly, the district court did not err in deciding that the
Appellants failed to raise any genuine issue of material fact
with regard to their claims against Officer Green as a result of
the question about his location during the events in question.
Next, the Appellants contend that the district court should
not have granted summary judgment with respect to their claim
based on alleged violations of Cook’s Fourth Amendment rights—
that Cook was unreasonably seized on August 14. Specifically,
39
they point to: (1) the Fourth Amendment’s protection “against
arrests without probable cause, [and] against the use of
excessive force in making arrests and detentions that are
themselves supported by probable cause” (Opening Br. 57); and
(2) cases in which courts have held that a police officer’s
failure to intervene during another officer’s use of excessive
force can be the basis of § 1983 liability. From these
concepts, they assert there is sufficient evidence in the record
from which a jury could conclude that Officer Green was liable
for violating Cook’s Fourth Amendment rights because Officer
Green allegedly witnessed Officer Fried violating Cook’s Fourth
Amendment rights by seizing him without probable cause and using
excessive force during that seizure, and yet failed to stop
either violation. As a result, they maintain that summary
judgment on their Fourth Amendment claim was improper. 16
16
The Appellants initially alleged a Fourth Amendment claim
against Officer Howard as well. It appears they abandoned that
claim in light of their acceptance of undisputed evidence
produced during discovery that showed Officer Howard was not
present until arriving at the highway level after Cook’s death.
Although parts of the opening brief continue to allege that
Officer Howard was present at the fence, it appears that
allegation is limited to a recitation of the facts for purposes
of the Rule 12(b)(6) motion. There is a difference, however,
between viewing the facts alleged in the amended complaint as
true for purposes of our review of the Rule 12(b)(6) motion and
improperly representing facts to the Court that counsel now
knows to be false. Counsel is cautioned not to engage in such
conduct in any future submissions to this Court. In any event,
the Appellants have abandoned a Fourth Amendment-based claim
(Continued)
40
The district court concluded that the Fourth Amendment was
not implicated in this case because the facts, viewed in the
light most favorable to the Appellants, showed that Cook had
never been “seized” within the meaning of the Fourth Amendment:
“Although the police were certainly attempting to effectuate a
seizure of Mr. Cook, their attempt failed, as he got behind the
fence without any physical police contact . . . .” (J.A. 29.)
We agree with the district court’s analysis and application of
Supreme Court precedent.
As relevant here, the Fourth Amendment protects against
“unreasonable . . . seizures.” This Fourth Amendment protection
is not implicated every time a police officer approaches an
individual to ask a few questions. 17 Fla. v. Bostick, 501
against Officer Howard, and even if they had not, such a claim
would fail based on the record before us.
17
The Appellants repeatedly refer to the BCPD officers’
initial approach and pursuit of Cook as being unlawful due to a
lack of probable cause. They are wrong as to both the law and
the facts. During discovery, several points came to light which
are no longer disputed by any evidence (despite the Appellants’
bald assertions to the contrary), and which are relevant to
understanding the initial encounter between Cook and the BCPD
officers. The officers observed Cook walking in such a manner
that suggested he was carrying a concealed weapon at his waist.
When they approached him in order to conduct a field interview,
Cook fled and the officers pursued him. A firearm was later
retrieved from Cook’s body.
While we undertake the basic Fourth Amendment “seizure”
analysis employed by the district court, we also note that under
the Supreme Court’s precedent regarding Terry stops and in
particular its decision in Illinois v. Wardlow, 528 U.S. 119
(Continued)
41
U.S. 429, 434 (1991); Schultz v. Braga,
455 F.3d 470, 480 (4th
Cir. 2006). Rather, there must be a “seizure,” that is, a
situation where, “in view of the totality of the circumstances .
. . , a reasonable person would not feel free to leave or
otherwise terminate the encounter.” United States v. Weaver,
282 F.3d 302, 309 (4th Cir. 2002). A seizure requires “either
physical force . . . or, where that is absent, submission to the
assertion of authority.” California v. Hodari D.,
499 U.S. 621,
626 (1991) (emphasis omitted).
The facts of this case, viewed in the light most favorable
to the Appellants, could not establish that a “seizure” by
either physical force or submission to an assertion of authority
occurred. A seizure by physical force occurs when there is “a
governmental termination of movement through means intentionally
applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989)
(emphasis omitted) (analyzing whether a seizure by physical
force occurred when a fleeing subject ran into and was killed on
impact with a police-created roadblock set in place to stop the
subject); Hodari
D., 499 U.S. at 624 (“From the time of the
(2000), the BCPD officers were not required to have probable
cause simply to approach Cook initially so long as they had a
“reasonable, articulable suspicion” of criminal activity.
Moreover, even absent a reasonable, articulable suspicion, once
Cook engaged in “unprovoked flight upon noticing the police,”
the police could lawfully pursue him in order “to briefly
investigate further.” see
id. at 123-26.
42
founding to the present, the word ‘seizure’ has meant a taking
possession. For most purposes at common law, the word connoted
not merely grasping, or applying physical force to, the animate
or inanimate object in question, but actually bringing it within
physical control.”) (internal citations omitted); id. at 629
(holding no “seizure” occurred until Hodari was physically
apprehended, i.e., tackled to the ground to stop his flight);
see also Cnty. of Sacramento v. Lewis,
523 U.S. 833, 843-44
(1998). Cook fled from BCPD officers as they approached him;
there is no evidence in the record that they ever made physical
contact with Cook, nor is there evidence that they terminated
his “freedom of movement through means intentionally applied.”
Contrast
Brower, 489 U.S. at 597-98 (holding that where the
police roadblock was intended to stop Brower by physical impact
and did so, a seizure occurred).
When an officer acts by a show of authority rather than
physical restraint, “the individual must actually submit to that
authority” for there to be a “seizure.” United States v.
Beauchamp, 659 F.3d 560, 566 (6th Cir. 2011) (citing Brendlin v.
California,
551 U.S. 249, 254 (2007)). Even assuming that the
BCPD officers’ approach and pursuit of Cook constituted “show of
authority,” Cook’s flight nonetheless demonstrates a lack of
submission such that a “seizure” did not occur. See Hodari
D.,
499 U.S. at 629 (assuming that a police officer’s pursuit
43
constitutes a “show of authority,” a defendant’s non-compliance
meant there was no seizure during the course of the pursuit);
see also United States v. Griffin, 652 F.3d 793, 800-01 (7th
Cir. 2011) (“[A] seizure by show of authority does not occur
unless and until the suspect submits.”) (emphasis in original).
At no time did Cook submit to a show of authority.
The uncontroverted record evidence thus supports the
district court’s determination that Cook had not been “seized”
within the meaning of the Fourth Amendment. Accordingly, the
court did not err in granting Officer Green summary judgment on
the Fourth Amendment claim.
The Appellants next advance the argument that the district
court erred in granting summary judgment to Officer Green on
their claim that his conduct violated Cook’s substantive due
process rights. A § 1983 claim of this sort (based on executive
branch action) is more difficult to prove than alleging
substantive due process violations resulting from legislative
action. “[T]he Supreme Court has . . . marked out executive
conduct wrong enough to register on a due process scale as
conduct that ‘shocks the conscience,’ and nothing less.”
Waybright v. Frederick County, Maryland, 528 F.3d 199, 205 (4th
Cir. 2008) (quoting
Lewis, 523 U.S. at 850). Negligence is, by
definition, insufficient to satisfy this hurdle, although
something less than intentional conduct may, in special
44
circumstances, be sufficient. 18 Id. The Supreme Court has thus
instructed:
[I]n a due process challenge to executive action, the
threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary
conscience. That judgment may be informed by a
history of liberty protection, but it necessarily
reflects an understanding of traditional executive
behavior, of contemporary practice, and of the
standards of blame generally applied to them. Only if
the necessary condition of egregious behavior were
satisfied would there be a possibility of recognizing
a substantive due process right to be free of such
executive action . . . .
Lewis, 523 U.S. at 847 n.8.
We conclude that the Appellants’ allegations with regard to
Officer Green — the only BCPD officer who is a party defendant
and who is alleged to have been at the scene prior to Cook’s
death — do not rise to the requisite level to survive summary
judgment. Simply put, even assuming that Officer Green pursued
Cook on foot and was present at the fence, there is nothing
18
We note that the Appellants rely on Parratt v. Taylor,
451 U.S. 527 (1981), to contend that negligence is sufficient to
establish liability under § 1983. In so doing, they overlook
the Supreme Court’s decision in Daniels v. Williams,
474 U.S.
327 (1986), which overruled Parratt in relevant part, by holding
that Fourteenth Amendment due process violations “must flow from
conduct amounting to more than mere negligence.” Temkin v.
Frederick Cnty. Comm’rs,
945 F.2d 716, 719 (4th Cir. 1991).
Counsel’s reliance on subsequently overruled case law is
not isolated to this one instance. Quite apart from the lack of
merit of the Appellants’ claims, we once again caution counsel
that such advocacy renders a disservice to his clients and
should not be repeated.
45
about his alleged conduct in the record evidence that “shocks
the conscience.” As noted above, two sources place Officer
Green as a participant in the foot chase and present at the
fence prior to Cook’s fall—Officer Howard’s accident report
(albeit hearsay) and eyewitness Summers’ deposition testimony.
The accident report does not contain any evidence to support a
substantive due process claim against Officer Green, as that
report simply indicates that Cook “lost his hand-hold before
Officer Green could get to him [behind the fence].” (J.A. 972.)
Summers’ deposition testimony also precludes the conclusion
that Officer Green violated Cook’s due process rights. Summers
stated that she observed one African-American BCPD officer at
the scene; she identified that officer as Officer Green. She
averred that Officer Green never shook the fence, but was
“trying to talk [Cook] into coming around . . . and get down,”
and to coax him to a safe position. (J.A. 581, 586-88, 614,
617-19, 639, 679.) She further stated that after Cook fell, the
African-American officer “looked dazed and stunned,” and was
“crying.” (J.A. 585, 590, 654-55.) When asked whether Summers
saw the African-American officer “do anything to cause injury to
[Cook,]” or to “cause [Cook] to fall,” Summers replied, “No,
sir,” “I didn’t hear him call him names and I didn’t see him
pushing the fence.” (J.A. 655, 656.)
46
Even in the light most favorable to the Appellants (i.e.,
accepting that Officer Green was the African-American BCPD
officer Summers observed near the fence), Summers’ testimony
clearly states that officer did not participate in any
actionable conduct. Nor does her statement allow an inference
that Officer Green simply stood by and allowed the other
officers to violate Cook’s due process rights: according to
Summers’ testimony, the African-American officer was attempting
to talk Cook down from the fence and bring him to safety.
Speculation that Officer Green could have done something else or
more is not the standard by which a claim against him is judged,
and the record does not demonstrate that Officer Green’s conduct
rose to the level of culpability required for a viable due
process claim. See Patten v. Nichols, 274 F.3d 829, 834 (4th
Cir. 2001) (“While it is clear that intentionally harmful
conduct may constitute a violation of the Fourteenth Amendment,
it is equally clear that negligence alone does not amount to a
constitutional violation.”);
Lewis, 523 U.S. at 853 (“[W]hen
unforeseen circumstances demand [a police] officer’s instant
judgment, even precipitate recklessness fails to inch close
enough to harmful purpose to spark the shock that implicates the
large concerns of the governors and the governed.”) (internal
quotation marks omitted);
id. at 840-55 (describing the
different degrees of culpability required).
47
In contrast with the actual evidence in the record, the
Appellants’ opening brief consists of rank conjecture and
speculation by alleging that Officer Green actively participated
in the Caucasian BCPD officers’ allegedly violative conduct.
But at the summary judgment stage, the Appellants can no longer
rest on mere allegations; instead, they must have set forth
specific evidence to support their claims. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). The facts they
have established, even when viewed in the light most favorable
to them, do not set forth a viable substantive due process claim
against Officer Green. His conduct cannot, as a matter of law,
be said to “shock the conscience,” or to be so egregious or
outrageous so as to state a claim for a constitutional
violation. For these reasons, we hold that the district court
did not err in awarding summary judgment to Officer Green.
2. Claims Based on a Conspiracy to Cover-Up Cook’s Death
The Appellants also contend that the district court erred
in granting summary judgment to Officer Howard on their
substantive due process claims. As already recognized, the
Appellants’ claims against Officer Howard shifted significantly
in light of the evidence produced at discovery. By the time the
summary judgment motion was decided, the only claims remaining
against Officer Howard were based on his alleged participation
48
in a conspiracy to cover up the true circumstances of Cook’s
death by, inter alia, filing a false accident report. The
district court granted summary judgment to Officer Howard based
on its conclusion that the Appellants had not identified a
protected interest.
The Appellants assert that the record contains sufficient
evidence from which a jury could conclude that Officer Howard
participated in a conspiracy that violated the Appellants’ due
process rights. The Appellants suggest Officer Howard’s conduct
implicates two protected due process interests. First, they
contend that “a parent or child of a decedent whose death was
[caused] by the unlawful conduct of police officers have a”
substantive due process claim against those officers and any
individual who covers up that misconduct. (Opening Br. 61-62.)
Second, they contend that the conspiracy to cover up the events
surrounding Cook’s death impeded their access to courts.
We agree with the district court: Officer Howard was
entitled to judgment as a matter of law because the Appellants
failed to identify and adequately plead protected constitutional
interests. As we recognized in Shaw v. Stroud, 13 F.3d 791 (4th
Cir. 1994), “the Supreme Court has never extended the
constitutionally protected liberty interest incorporated by the
Fourteenth Amendment due process clause to encompass
deprivations resulting from governmental actions affecting the
49
family only incidentally.” Id. at 805. We declined to sanction
such a claim in Shaw, and we adhere to that precedent. See
id.
Similarly, the Appellants failed to advance a viable claim
based on a conspiracy to deny access to courts. Such a claim
required proof that Officer Howard and others “acted jointly in
concert and that some overt act was done in furtherance of the
conspiracy which resulted in [the] Appellants’ deprivation of a
constitutional right (in this case the right to access to
courts).” Hinkle v. City of Clarksburg,
81 F.3d 416, 421 (4th
Cir. 1996). The evidence does not disclose any communication—
direct or circumstantial—that Officer Howard intentionally filed
a false accident report or otherwise attempted to cover up the
events of August 14, let alone that he conspired with anyone to
do so. “The problem with [the Appellants’] evidence is not
merely that each act alleged is capable of an innocent
interpretation. Rather, the problem is that [the] evidence
amounts to nothing more than rank speculation and conjecture.”
Id. at 422 (rejecting access to courts conspiracy claim).
At bottom, the Appellants’ argument appears to be that
because Officer Howard’s report contradicts their speculation
about what happened and thus impedes their ability to prove it
in court, he had to have participated in a conspiracy that
denied their right to access to courts. This argument
necessarily fails not only for the problems already identified,
50
but also for the reason identified by the district court: the
Appellants have failed to identify with any specificity how
Officer Howard’s purported conduct prevented them from seeking
judicial redress. See Christopher v. Harbury, 536 U.S. 403,
414-16 (2002); see also Swekel v. City of River Route,
119 F.3d
1259, 1263-64 (6th Cir. 1997) (access to courts claims require
proof “that the defendants’ actions foreclosed [the Appellants]
from filing suit in . . . court or rendered ineffective any . .
. remedy [they] previously may have had”). Having failed to
produce evidence of Officer Howard’s participation in a
conspiracy to cover up the events surrounding Cook’s death or to
plead with sufficient particularity how such a conspiracy would
have implicated their right to access courts, this substantive
due process claim also fails. 19 20
19
In their opening brief, the Appellants make a passing
reference to Officer Green’s purported participation “in the
cover-up of the unlawful actions of all the police officers,”
such that he, too, is liable for participating in a conspiracy
to violate Cook’s constitutional rights. (Opening Br. 59.).
The district court found that the Appellants had not pled a
conspiracy claim against Officer Green in their amended
complaint, but had raised such a claim for the first time in
their opposition to summary judgment. For that reason, it held
the Appellants had not satisfied “the basic notice pleading
standards” required in Federal Rule of Civil Procedure 8(a).
We agree with the district court. Federal pleading
requires that a complaint give defendants “fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957). Even under Rule 8’s
liberal pleading requirements, no reading of the amended
complaint could conclude that it contains a cognizable
(Continued)
51
For the aforementioned reasons, the district court did not
err in granting summary judgment to Officers Howard and Green as
to all of the claims the Appellants asserted against them.
III.
For the foregoing reasons, we affirm the judgments of the
district court.
AFFIRMED
conspiracy claim against Officer Green. Accordingly, the
district court correctly held that this claim was barred. See
Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 254 (4th
Cir. 2005) (“[N]otice pleading requires generosity in
interpreting a plaintiff’s complaint. But generosity is not
fantasy.”) (internal quotation marks and citation omitted).
20
The Appellants also challenge the district court’s grant
of summary judgment with respect to Counts IV and V, their state
law claims. We have reviewed the parties’ arguments and find no
reversible error in the district court’s determination that
those claims were precluded due to the Appellants’ failure to
provide the requisite notice under Maryland’s Local Government
Tort Claims Act.
52
DIAZ, Circuit Judge, dissenting in part and concurring in part:
While the majority opinion highlights the many missteps in
this case, it ultimately assigns sole responsibility for them to
the Appellants, affirming the judgment of the district court
across the board. I disagree, and would hold instead that the
district court abused its discretion in granting the BCPD’s
motion to quash based on its blanket conclusion that the
documents sought by the Appellants were irrelevant. And,
looking to the domino effect of that decision on the Appellants’
subsequently denied motion to substitute, I do not believe that
the court’s error was harmless. Accordingly, although I concur
in the remainder of the opinion, I am unable to join Part II.B.
I.
In considering the district court’s decision to quash the
Appellants’ request for documents related to Cook’s death, the
majority properly emphasizes the deference that we owe the
district court on appeal. Review for abuse of discretion,
however, does not mean a district court’s authority is carte
blanche. See United States v. Under Seal (In re Grand Jury),
478 F.3d 581, 584 (4th Cir. 2007) (“A district court has abused
its discretion if its decision is guided by erroneous legal
principles or rests upon a clearly erroneous factual finding.”
(quoting Morris v. Wachovia Sec., Inc.,
448 F.3d 268, 277 (4th
53
Cir. 2006))); see also United States v. Mason, 52 F.3d 1286,
1289, 1293 (4th Cir. 1995) (noting the deferential standard of
review, but finding an abuse of discretion). Mindful that I may
not substitute my judgment for that of the district court, I
believe nonetheless that in quashing the Appellants’ document
request in its entirety on relevance grounds, the court abused
its discretion, and that this error in turn infected the court’s
analysis of “good cause” as to the Appellants’ later-filed
motion to substitute.
As support for its decision to grant the BCPD’s motion to
quash, the district court stated simply that it was “fully
satisfied that the documents sought by [the Appellants] are
irrelevant to the claims that are now pending.” J.A. 18. 1 I do
not dispute that most of the documents sought by the Appellants
were irrelevant. Yet the relevance of documents responsive to
the first three requests—including incident reports, witness
interviews, surveillance records, and statements from police
officers related to the tragic events of August 14, 2007 and
1
The majority also highlights the district court’s
assertion that the BCPD should not be put to the expense of
assembling the requested documents. The expense consideration,
however, trailed the court’s relevance finding. That is,
immediately after determining that the requested documents were
“irrelevant,” the court opined that “[t]herefore, the [BCPD]
should not be put to the expense” of assembling them. J.A. 18.
54
involving Cook—is equally clear. Moreover, in opposing the
BCPD’s motion to quash, the Appellants specifically argued that
some of the documents would lead to evidence regarding their
claims against Officers Howard and Green “and would also lead to
the disclosure of the identity of the other police officers at
the scene.” Id. 192 (emphasis added). Significantly, had the
district court ordered the BCPD to produce those documents that
were relevant to the remaining claims, the Appellants would have
known on or before October 15, 2010 that Officers Fried and Choi
were also involved in Cook’s pursuit.
Thus, it is little wonder, as the majority acknowledges,
that the district court’s wholesale quashing of the requests
“related to Cook’s death” is “more problematic.” Maj. Op. at
19. I agree, particularly given that the operative procedural
rule grants a district court the power to quash or modify a
subpoena. See Fed. R. Civ. P. 45(c)(3) (emphasis added). In my
view, a district court abuses its discretion when—as in this
case—it fails to recognize or consider the range of options
available to it before ruling on a motion to quash. For
example, in Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
818-19 (5th Cir. 2004), the Fifth Circuit held that the district
court abused its discretion in quashing a subpoena “outright,”
noting in part that the court did not “attempt to modify the
subpoena to cure any overbreadth” and adding that “[g]enerally,
55
modification of a subpoena is preferable to quashing it
outright.” See also Linder v. Nat’l Sec. Agency, 94 F.3d 693,
698 (D.C. Cir. 1996) (agreeing that “a modification of a
subpoena is generally preferred to outright quashing,” but
finding no abuse of discretion where the subpoena request could
not be modified “in any fruitful manner”). Here, the district
court’s decision to quash in toto the Appellants’ request for
production of documents swept far too broadly.
While reluctant to concede the district court’s error, the
majority nevertheless attempts to excuse it by noting that the
BCPD acknowledged in the motion to quash its obligation to
produce “non-privileged, non-disciplinary/personnel related
responsive documents in its possession . . . that pertain
specifically to the facts and circumstances of the August 14,
2007 incident.” J.A. 178 n.2. That concession, however, is far
from satisfying when put in context, particularly since the
district court placed no conditions or limitations on its order
to quash, and thus the BCPD was free to produce documents—or
not—at its leisure. As it happened, the BCPD did not produce
the documents until November 22, 2010, well after both the
October 15, 2010 return date set forth in the Appellants’
request for production of documents and the October 12, 2010
deadline for amending pleadings.
56
II.
It is against this backdrop that I consider the district
court’s related denial of the Appellants’ motion to amend their
pleadings (by substituting Officers Fried and Choi as party
defendants) as lacking “good cause.” The majority insists that
the district court’s earlier ruling on the motion to quash “did
not directly bring about the Appellants’ inability to timely
acquire information about Officers Fried and Choi’s alleged
presence and participation in the events of August 14,” Maj. Op.
at 25, opting instead to place sole responsibility for that
result on the Appellants’ lack of diligence. The Appellants
certainly deserve substantial blame for the procedural mess that
is this case. But unlike the majority, I am unwilling to ignore
the domino effect of the district court’s error on the motion to
quash when considering whether the Appellants subsequently
demonstrated good cause to amend their pleadings.
In analyzing this issue, I am of course bound by the
“harmless error” doctrine, which commands that “[u]nless justice
requires otherwise, no error . . . by the court . . . is ground
for . . . vacating, modifying, or otherwise disturbing a
judgment or order” and that we must “disregard all errors and
defects that do not affect any party's substantial rights.”
Fed. R. Civ. P. 61. See Tagupa v. Bd. of Dirs., 633 F.2d 1309,
1312 (9th Cir. 1980) (citing Rule 61 and noting that “[t]he
57
harmless error doctrine applies to discovery orders”); see also
Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (declining
to excuse the district court’s exclusion of evidence as harmless
where a party “was prevented from fully developing evidence
relevant to a material issue”). I conclude here, however, that
the district court’s error on the motion to quash ruling was not
harmless.
In arriving at that conclusion, I necessarily concede that
the Appellants (1) inexplicably set a return date for the
request for production of documents that was three days beyond
the scheduling order’s deadline for joining parties and amending
pleadings, (2) did not request an extension of the scheduling
order deadlines after the district court granted the motion to
quash, and (3) failed to ask the district court for permission
to conduct discovery prior to the entry of the scheduling order.
Yet these mistakes were not inexorably fatal, as “good cause”
does not demand perfection by a litigant. See 6A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1522.2 (3d ed. 2010) (“The use of the good-cause
standard [for modifying scheduling orders], rather than allowing
modification only in cases of manifest injustice as is done for
other pretrial orders, indicates that there may be more
flexibility in allowing some relief.”) (citation omitted).
58
As it relates to the “good cause” determination, it was not
until November 22, 2010 that the BCPD first disclosed that
Officers Fried and Choi were involved in the pursuit of Cook. A
mere eight days later, the Appellants filed the motion to
substitute, arguing that they “could not have reasonably moved
to amend the complaint to substitute the names of these John Doe
defendants any earlier” than November 22, 2010. J.A. 202.
Even recognizing the Appellants’ many procedural blunders,
had the district court parsed the request for documents when
considering the motion to quash, and ordered the production of
those documents that were patently relevant, the Appellants
would have obtained the reports of Officers Fried and Choi by
October 15, 2010 at the latest—rather than five weeks later.
Admittedly, the Appellants may nevertheless have been left to
file an untimely motion to substitute, but a trial judge
considering whether there is “good cause” to allow such a motion
surely must account for the length of the delay. See O’Connell
v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir.
2004) (affirming denial of motion to amend filed five months
after the scheduling order deadline and concluding that “[s]uch
a long and unexplained delay vindicates the district court's
59
conclusion that plaintiffs were not diligently pursuing this
litigation”). 2
As did the district court, the majority faults the
Appellants for failing to more actively pursue discovery on the
front end of the case regarding the other officers involved in
the pursuit. Fair enough, but here again, some context helps to
soften the blow. Specifically, as emphasized at oral argument,
while the Appellants suspected that other officers were involved
in the alleged conspiracy following Cook’s death, they also
believed that Howard and Green were the officers who initially
pursued Cook—and this belief was not without reason.
Shortly after Cook’s death (but before filing suit), the
Appellants requested that the BCPD preserve and produce certain
2
Curiously, the district court’s order denying the motion
to substitute makes little mention of the seven-week delay
between the filing of the motion and the deadline in the
scheduling order for seeking such relief. A general
frustration, however, with various other delays in the
litigation clearly drove the court’s conclusion that the
Appellants failed to demonstrate good cause. Specifically, the
court noted that the (1) Appellants’ motion to substitute came
nearly three years after Cook’s death, (2) suit was filed in
February 2010 and although the scheduling order was not entered
until September 9, 2010, this was due to the Appellants’ naming
of several improper defendants, and (3) Appellants did not move
for leave to conduct pre-scheduling order discovery. Any
frustration on the part of the district court with the slow
progress of the litigation—a sluggishness that the court
attributed solely to the Appellants—was certainly not helped by
the filing of a motion to substitute seven weeks past the
scheduling order deadline.
60
documents related to the incident, and in response, the BCPD
provided a copy of the motor vehicle accident report and the
police department’s incident report. It was these documents
that identified Howard as the reporting officer and Green as the
officer who initially pursued Cook on foot. Thus, the only
documents the BCPD provided before the Appellants filed suit
suggested that Officers Howard and Green were properly-named
defendants, and said nothing of Officers Fried and Choi’s
involvement in the pursuit. It was not until the BCPD’s
disclosure on November 22, 2010—which included reports from
Officers Fried and Choi dated August 14, 2007—that the
Appellants learned otherwise.
Moreover, it is not clear to me, as the majority asserts,
that the Appellants “almost certainly could have ascertained
[Officers Fried and Choi’s] presence significantly earlier than
they did.” Maj. Op. at 30. For example, although Officer
Howard’s answer to interrogatories listed Officers Fried and
Choi as present at the scene, he does not assert that they were
involved in the pursuit. And in his later deposition, Officer
Howard agreed that he “did not recognize” Officer Fried, J.A.
733, and did not know Officer Choi. 3 Further, although Officer
3
Admittedly, Green testified at his deposition that Choi
was among the officers who responded to the scene where Green
was with Cook’s body, and that he ultimately learned that
(Continued)
61
Bradley testified in his deposition that he told Cook’s fiancée
shortly after the incident that he “saw” Officers Fried and Choi
at the scene, id. 499, Cook’s fiancée stated in her answer to
interrogatories only that Officer Bradley indicated that “two of
his co-workers were already there” when he arrived,
id. 859.
But even conceding that the Appellants should have been
more conscientious in pursuing discovery, I think it necessary
to consider their shortcomings against the backdrop of the
district court’s error on the motion to quash. On that score,
it bears repeating that the documents disclosed on November 22,
2010 fell well within the ambit of the Appellants’ first three
requests for production of documents, and that had the district
court not quashed the request for these relevant documents, the
Appellants would have learned of Officers Fried and Choi’s
involvement in the pursuit by at least October 15, 2010, if not
sooner. It is conceivable then that the Appellants might have
been able to comply with the district court’s deadline in the
Officer “Freel or Fried, I believe” was pursuing Cook that day,
and that “Officer Choi may have assisted.” J.A. 828. Such
vague statements, however, do not suggest that the Appellants
“almost certainly could have ascertained [Officers Fried and
Choi’s] presence significantly earlier than they did.” Maj. Op.
at 30. Indeed, even when presented with a photograph of Officer
Fried, the most Officer Green could say was that “[i]t looks
like it could be [the officer who pursued Cook],” but that he
was “not sure.” J.A. 829-30.
62
scheduling order for amending the pleadings, or at worse have
been a few days beyond it, thus making the “good cause” analysis
a far closer question.
In short, I believe that justice requires the district
court to consider anew its “good cause” determination on the
motion to substitute, in light of its failure to consider the
full breadth of its discretion on the motion to quash, and the
resulting impact on the Appellants’ ability to timely discover
the relevant facts warranting an amendment to their pleadings. 4
III.
For the reasons set forth above, I dissent from Part II.B
of the majority opinion.
4
In a footnote accompanying its order denying relief on the
motion to substitute, the district court suggests that the
Appellants’ attempts to join Officers Friend and Choi might well
have been futile under Federal Rule of Civil Procedure 15. The
district court, however, never reached the merits of the
proposed amendment under Rule 15, and neither do I.
63
