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.
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 light most favorable to the plaintiff.
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 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.
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 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."
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.
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.
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
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 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.
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.
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
We review de novo a district court's Rule 12(b)(6) dismissal, "focus[ing] only on the legal sufficiency of the complaint,"
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
Pursuant to
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
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 liability.
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.
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.
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.
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. 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 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.
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 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."
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 course is neither arbitrary or capricious. That the district court could also have acted within its discretion by undertaking a different course of action —
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 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.
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 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 "good cause" to modify the scheduling order deadlines, before also satisfying the Rule 15(a)(2) standard for amendment.
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."
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
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.
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.
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.
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 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 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.
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 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.
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, 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,
As noted, the Appellants alleged from the outset of the case that as-yet-unknown BCPD officers were present during and 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
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.
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 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.
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 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."
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
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, 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.
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.
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."
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."
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."
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 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
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.
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.
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 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
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)."
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, 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.
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.
For the foregoing reasons, we affirm the judgments of the district court.
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.
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.
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.
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
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.
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.
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.
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.
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 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.
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 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.
For the reasons set forth above, I dissent from Part II.B of the majority opinion.
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.
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
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.
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."
