Filed: Feb. 21, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2047 MARQUS L. STEVENSON; GARY L. BARNETT; CHRISTOPHER T. HOWARD, Plaintiffs – Appellants, and KIRK BOND, JR., Plaintiff, v. CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No. 3384, in both his official and individual capacities; ADEY, PFC, Badge No. 2712, in both his official and individual capacities; PRINCE GEORGE'S COUNTY, MD, Defendants - Appellees. Appeal from the United States District Court for the District o
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2047 MARQUS L. STEVENSON; GARY L. BARNETT; CHRISTOPHER T. HOWARD, Plaintiffs – Appellants, and KIRK BOND, JR., Plaintiff, v. CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No. 3384, in both his official and individual capacities; ADEY, PFC, Badge No. 2712, in both his official and individual capacities; PRINCE GEORGE'S COUNTY, MD, Defendants - Appellees. Appeal from the United States District Court for the District of..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2047
MARQUS L. STEVENSON; GARY L. BARNETT; CHRISTOPHER T.
HOWARD,
Plaintiffs – Appellants,
and
KIRK BOND, JR.,
Plaintiff,
v.
CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No.
3384, in both his official and individual capacities; ADEY,
PFC, Badge No. 2712, in both his official and individual
capacities; PRINCE GEORGE'S COUNTY, MD,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cv-01791-RWT)
Argued: October 30, 2013 Decided: February 21, 2014
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed in part, reversed in part, and remanded with
instructions by published opinion. Judge Floyd wrote the
opinion, in which Judge Diaz and Judge Anderson joined.
Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, PLLC,
Washington, D.C., for Appellants. Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland;
Victoria M. Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore,
Maryland, for Appellees.
2
FLOYD, Circuit Judge:
This appeal comes to the Court after what the district
court described as “a rather long and tortured factual history.”
Several orders are on appeal: dismissal; grant of summary
judgment; denial of a motion pursuant to Federal Rule of
Civil Procedure 59(e); and denial of a motion pursuant to
Federal Rule of Civil Procedure 60(b). As explained in greater
detail below, we affirm in part, reverse in part, and remand
with instructions.
I.
A.
According to the complaint, in the early-morning hours of
July 8, 2007, police officers assaulted Marqus Stevenson, Gary
Barnett, and Christopher Howard (collectively, “Appellants” 1)
outside of a nightclub in Prince George’s County, Maryland (the
“County”). Appellants claim that the attack was unprovoked.
Among the officers present at the altercation were Officer
LaVance Lowery of the City of Seat Pleasant, Maryland (“Seat
Pleasant”), and Officer Rickie Adey of the County. Officer
1
A fourth individual, Kirk Bond, was also assaulted. Bond
was a named plaintiff in the complaint but was dismissed with
prejudice from the case after he failed to participate in
discovery.
3
Lowery was the only Seat Pleasant officer present, but there
were multiple County officers present. Although none of
Appellants were able to identify which individual officers
assaulted them, it is undisputed that Officer Lowery arrested
Stevenson. The merits of that arrest, however, are contested.
On July 8, 2009, Appellants sued Officer Adey and Officer
Lowery in their official and individual capacities and the
County and Seat Pleasant on the theory of vicarious liability.
Although Appellants’ complaint mentions other unidentified
police officers when describing the events surrounding the
assault, those officers were not named as defendants. The
complaint contained six counts: Excessive Force/Police Brutality
(“Excessive Force”), Battery, Intentional Infliction of
Emotional Distress, False Arrest, a count under 42 U.S.C. § 1983
for Deprivation of Civil Rights, and a count under Articles 24
and 26 of the Maryland Constitution. The defendants each moved
for partial or total dismissal of the counts against them, which
Appellants did not oppose. 2 After dismissal, the following
counts remained: as to Officer Adey, Excessive Force and
Battery; as to the County, the Maryland constitutional count;
2
Appellants’ counsel stated at oral argument that he did
not oppose the motions to dismiss due to his inability to make
certain submissions and representations to the district court at
that time. The Court appreciates this honesty and candor.
4
and as to Officer Lowery, the § 1983 count. All counts against
Seat Pleasant were dismissed. As is relevant for purposes of
this appeal, the § 1983 count states as follows:
35. Plaintiffs further allege that
defendants Lowery and Adey, with deliberate
indifference to and reckless disregard for
the safety and well-being of the plaintiffs,
and in violation of the 4th and 5th
Amendments to the Constitution, did on
July 8, 2007, commit or allow to be
committed an unreasonable seizure which
deprived the plaintiffs of their
Constitutional rights without affording them
due process of law.
36. As a direct and proximate result
of the unreasonable actions of defendants
Lowery and Adey, . . . Marqus L. Stevenson
[was] subjected to an unlawful seizure when
[he was] arrested without probable cause and
all of the plaintiffs were subjected to an
unreasonable seizure when they all were
subjected to unreasonable and unwarranted
force.
Officer Adey, Officer Lowery, and the County (collectively,
“Appellees”) subsequently moved for summary judgment, which
Appellants opposed. The district court held a hearing on the
motions on December 21, 2010, at which time it granted
Appellees’ motions in their entireties except as to the § 1983
count against Officer Lowery by Stevenson. As to the other
counts, the district court determined that there was no credible
evidence to show that Officer Adey and Officer Lowery assaulted
any of Appellants and, absent such a showing with respect to
5
Officer Adey, the County could not be liable on the theory of
vicarious liability. Finally, the district court stated the
following at the summary judgment hearing with respect to
Appellants’ theory of bystander liability:
Bystander liability was not pled in this
case. There was no pleading indicating that
an officer who had control of the situation
observed people in violation of the
recognition of that as a cause of action and
failed to do something about it. And to
allow this to be pled and asserted for the
first time in response to a Summary Judgment
motion, when it hasn’t been pled and hasn’t
been explored in discovery, is not going to
be considered by the Court.
Following the hearing, the district court entered a written
order on December 22, 2010, respecting summary judgment.
On January 13, 2011, Appellants moved pursuant to Federal
Rule of Civil Procedure 59(e) to alter or amend the district
court’s ruling on summary judgment. Specifically, Appellants
contended that, inter alia, they had sufficiently stated a cause
of action for bystander liability. The district court denied
Appellants’ motion on May 19, 2011. In doing so, the court
stated that it “does not dispute that bystander liability is a
cognizable theory under § 1983. However, [Appellants] utterly
failed to plead this theory or otherwise provide fair notice
to . . . [Appellees] that they sought liability on this theory.”
A jury trial was held from May 31 to June 2, 2011, on the
sole count of Stevenson’s § 1983 claim against Officer Lowery.
6
Officer Lowery moved for judgment at the end of Stevenson’s
presentation of the case and again after he presented his own
case, and the district court reserved judgment on both motions.
Then, during the rebuttal closing argument, Stevenson’s attorney
mentioned bystander liability, and Officer Lowery’s attorney
objected. The district court allowed the reference to bystander
liability, and the case was submitted to the jury. During
deliberations, the jury submitted the following question to the
court: “Does excessive force require contact? Or if a police
officer does not intervene in the [use of] excessive force is
that consider[ed] excessive force?” The court then brought the
jury back into the courtroom, instructed the jury on bystander
liability, and allowed Officer Lowery to sur-rebut Stevenson’s
argument. The jury ultimately found that Officer Lowery
violated Stevenson’s constitutional rights by using excessive
force and awarded to Stevenson damages in the amount of $36,000.
After the trial, Officer Lowery moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(b)
on the grounds that bystander liability had not been pleaded and
was improperly injected into the case at closing argument. The
district court held a hearing on Officer Lowery’s motion on
January 12, 2012, at which time the court determined that
paragraphs 35 and 36 of the complaint did sufficiently state a
7
cause of action for bystander liability, thus changing course
from its ruling at summary judgment. The court stated:
With the 20/20 vision of hindsight, I
believe that I probably overstated things in
my May 2011 ruling . . . in concluding that
[Appellants] utterly failed to plead
[bystander liability] because they did
indicate in the relevant paragraph of the
complaint that the defendants, . . . with
deliberate indifference to and reckless
disregard for [the] safety and well-being of
[Stevenson] . . . did, on July 8, 2007,
commit or allow to be committed an[]
unreasonable seizure . . . . I think with
the 20/20 vision of hindsight I would have
to say that [bystander liability] was pled.
. . .
I believe that I have made an error,
and I would rather fix it myself than have
the Fourth Circuit do it.
Although Officer Lowery did not ask for a new trial in his
motion, the district court granted Officer Lowery’s motion and
ordered a new trial pursuant to its authority under Rule 50(b).
The court stated that, “at the new trial, the theory of
Bystander Liability will be front and center.” Prior to a
second trial, however, Officer Lowery and Stevenson reached a
settlement agreement.
On May 18, 2012, Appellants moved pursuant to Federal Rule
of Civil Procedure 60(b) to vacate the district court’s May 19,
2011 order as it pertained to bystander liability. Appellants
argued that, in light of the district court’s post-trial
8
determination that they had sufficiently pleaded bystander
liability, each of Appellants was entitled to a trial for
bystander liability against Officer Adey and the County, and
Howard and Barnett were also entitled to a trial for bystander
liability against Officer Lowery. The district court denied
Appellants’ Rule 60(b) motion on the grounds that “there is no
mistake or injustice that justifies vacating the May 19, 2011
order” and because the Rule 60(b) motion was not timely filed.
On this latter point, the district court ruled that the
Rule 60(b) motion was effectively a motion to vacate the written
summary judgment order—dated December 22, 2010—and that the
one-year limitations period applicable to Rule 60(b)(1) motions
had expired.
On August 6, 2012, the district court entered an order
respecting Officer Lowery and Stevenson’s settlement agreement
and dismissing all claims. Appellants subsequently timely filed
a notice of appeal pertaining to (1) the district court’s grant
of Appellees’ unopposed motions to dismiss; (2) the grant of
summary judgment to Appellees; (3) the denial of Appellants’
Rule 59(e) motion; and (4) the denial of Appellants’ Rule 60(b)
motion. This Court has jurisdiction over the appeal pursuant to
28 U.S.C. § 1291.
9
B.
Before reaching the merits of the several orders on appeal,
we must first sort out what issues remain before the Court.
Because none of the orders on appeal either (1) adjudicated “all
the claims or the rights and liabilities of . . . all the
parties” or (2) included an “express[] determin[ation]” that
there was no just reason for delaying final judgment, each of
the orders listed in Appellants’ Notice of Appeal did not become
ripe for appeal prior to the district court’s August 6, 2012
order dismissing all claims against Officer Lowery; thus, each
order is properly before the Court from a procedural standpoint.
See Fed. R. Civ. P. 54(b); see also Fox v. Balt. City Police
Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (“We lack jurisdiction
to review a district court's order unless that order constitutes
a ‘final’ judgment. . . . Ordinarily, a district court order is
not ‘final’ until it has resolved all claims as to all
parties.”).
Appellants, however, presented no arguments in their brief
against the district court’s order granting Appellees’ and Seat
Pleasant’s unopposed motions for partial and total dismissal.
Accordingly, even though Appellants listed the February 17, 2010
dismissal order in their Notice of Appeal, Appellants waived any
challenge regarding the dismissal of all counts against Seat
Pleasant, all counts but the § 1983 count against Officer
10
Lowery, all counts but the Excessive Force and Battery counts
against Officer Adey, and all counts but the Maryland
constitutional count against the County. 3 See Canady v. Crestar
Mortg. Corp., 109 F.3d 969, 973–74 (4th Cir. 1997) (issues
raised in notice of appeal but not briefed on appeal are deemed
waived).
3
Even though Appellants did not challenge the motions to
dismiss, we note that the district court nevertheless has an
obligation to review the motions to ensure that dismissal is
proper. See Pomerleau v. W. Springfield Pub. Sch., 362 F.3d
143, 145 (1st Cir. 2004) (“When deciding a 12(b)(6) motion, the
mere fact that a motion to dismiss is unopposed does not relieve
the district court of the obligation to examine the complaint
itself to see whether it is formally sufficient to state a
claim. This obligation means that a court may not automatically
treat a failure to respond to a 12(b)(6) motion as a procedural
default.” (citation and internal quotation marks omitted)); see
also Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012)
(“The district court granted the motion to dismiss the complaint
under Rule 12(b)(6) because it was ‘unopposed.’ The Federal
Rules of Civil Procedure, however, do not, by their own terms,
require a party to file a response in opposition to a motion to
dismiss. Accordingly, the district court improperly granted the
motion to dismiss for failure to state a claim solely because
the [plaintiffs] failed to oppose the motion.” (citation
omitted)); cf. Robinson v. Wix Filtration Corp.,
599 F.3d 403,
409 n.8 (4th Cir. 2010) (“[I]n considering a motion for summary
judgment, the district court ‘must review the motion, even if
unopposed, and determine from what it has before it whether the
moving party is entitled to summary judgment as a matter of
law.’” (quoting Custer v. Pan Am. Life Ins. Co.,
12 F.3d 410,
416 (4th Cir. 1993))). Here, although the district court’s
written order effecting dismissal did not comment on the merits
of the motions to dismiss, the disrict court stated at the
summary judgment hearing that it granted the dismissal motions
for the stated reasons. Subject to certain misstatements of
law, see infra note 4, we conclude that dismissal for the stated
reasons was proper.
11
The remaining three orders on appeal—summary judgment, the
denial of Appellants’ Rule 59(e) motion, and the denial of
Appellants’ Rule 60(b) motion—present a host of issues that we
consider in turn, beginning with the sufficiency of the
complaint with respect to bystander liability. Although the
standards for reviewing the aforementioned orders are different,
compare Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc) (decision on summary judgment reviewed de novo), with
Robinson v. Wix Filtration Corp.,
599 F.3d 403, 407 (4th Cir.
2010) (decision on Rule 59(e) motion reviewed for an abuse of
discretion), and Eberhardt v. Integrated Design & Constr., Inc.,
167 F.3d 861, 869 (4th Cir. 1999) (decision on Rule 60(b) motion
reviewed for abuse of discretion), Appellants’ Notice of Appeal
evinced a clear intent to review the summary judgment order
itself, and thus our review is de novo. See Brown v. French,
147 F.3d 307, 310–11 (4th Cir. 1998) (“[D]esignation of a
postjudgment motion in the notice of appeal is adequate to
support a review of the final judgment when the intent to do so
is clear.”).
II.
This Court recognizes a cause of action for bystander
liability “premised on a law officer’s duty to uphold the law
and protect the public from illegal acts, regardless of who
12
commits them.” Randall v. Prince George’s Cnty., 302 F.3d 188,
203 (4th Cir. 2002). To succeed on a theory of bystander
liability, a plaintiff must demonstrate that a law-enforcement
officer “(1) [knew] that a fellow officer [was] violating an
individual’s constitutional rights; (2) ha[d] a reasonable
opportunity to prevent the harm; and (3) cho[se] not to act.”
Id. at 204 (footnote omitted). As quoted in its entirety above
and stated in relevant part here, paragraph 35 of the complaint
alleges that Officer Lowery and Officer Adey “did on July 8,
2007, commit or allow to be committed an unreasonable seizure
which deprived the plaintiffs of their Constitutional rights
without affording them due process of law.” (Emphasis added.)
Appellants maintain on appeal that this language sufficiently
states a cause of action for bystander liability, whereas
Appellees contend that the district court erred in determining,
post-trial, that bystander liability had been sufficiently
pleaded the entire time and that they were put on notice of
Appellants’ claim.
A.
In general, whether a complaint sufficiently states a claim
upon which relief can be granted is governed by the Supreme
Court’s plausibility pleading framework. See Ashcroft v. Iqbal,
556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544
13
(2007). Both Iqbal and Twombly, however, pertain to whether a
complaint contains sufficient factual matter to proceed beyond
dismissal. See Iqbal, 556 U.S. at 678 (“A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”);
Twombly, 550
U.S. at 570 (“[W]e do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that
is plausible on its face.”). Here, none of Appellees moved to
dismiss the § 1983 count of the complaint for insufficient
factual detail. Rather, Officer Lowery answered the § 1983
count; Officer Adey moved to dismiss the § 1983 count on the
theories that the arrest of Stevenson was lawful and that the
Fifth Amendment applies to the federal government only and not
to state governments or political subdivisions thereof 4; and
4
On this latter theory, we note that only certain
provisions of the Fifth Amendment do not apply to the individual
States. See Albright v. Oliver, 510 U.S. 266, 272 (1994)
(citing Hurtado v. California,
110 U.S. 516, 538 (1884)
(requirement of indictment by grand jury for capital crimes not
applicable to the States)); but see Benton v. Maryland,
395 U.S.
784, 794 (1969) (prohibition on double jeopardy applicable to
the States); Malloy v. Hogan,
378 U.S. 1, 6 (1964) (privilege
against self-incrimination applicable to the States). Moreover,
Officer Adey’s motion to dismiss references an “equal protection
clause of the Fifth Amendment.” To clarify, there is no express
equal protection clause in the Fifth Amendment, as there is in
the Fourteenth Amendment. Detroit Bank v. United States,
317
U.S. 329, 337 (1943). However, the Supreme Court has been clear
14
the County moved for dismissal on the theory that, pursuant to
Monell v. Department of Social Services, 436 U.S. 658 (1978),
municipal governments cannot be held vicariously liable for
constitutional violations committed by their employees unless
the employees were acting pursuant to a “policy or custom,” and
the County does not endorse a “policy or custom” whereby its
employees violate others’ constitutional rights.
Further, Appellees did not raise the sufficiency of the
pleading in the § 1983 count with respect to bystander liability
until their reply to Appellants’ opposition to the motions for
summary judgment. And even then, Appellees did not argue that
the complaint contained insufficient factual matter; rather, in
written reply and at the summary judgment hearing, Appellees
contended only that they were never put on notice of Appellants’
legal theory of bystander liability. Accordingly, the factual
pleading framework of Twombly–Iqbal is largely inapplicable
here, as Appellees’ argument is that Appellants failed to
connect the dots in their complaint—not that the complaint
that “the Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.” Vance
v. Bradley, 440 U.S. 93, 94 n.1 (1979); see also Weinberger v.
Wiesenfeld,
420 U.S. 636, 638 n.2 (1975) (“The Court’s approach
to Fifth Amendment equal protection claims has always been
precisely the same as to equal protection claims under the
Fourteenth Amendment.”).
15
itself contains insufficient factual information from which to
draw reasonable inferences.
B.
Appellees raise two principal arguments against the
district court’s post-trial ruling that bystander liability was
sufficiently pleaded in the § 1983 count (paragraphs 35 and 36)
of the complaint. We address these arguments in turn, reviewing
the district court’s ruling de novo. See Teachers’ Ret. Sys. v.
Hunter, 477 F.3d 162, 170 (4th Cir. 2012) (standard of review
regarding the legal sufficiency of a complaint).
1.
Appellees’ first challenge to the complaint’s sufficiency
with respect to bystander liability is that “the phrase
[‘bystander liability’] appeared nowhere in the complaint.”
Appellants, however, were not required to use any precise or
magical words in their pleading. See, e.g., Sansotta v. Town of
Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (“We see no reason
why the [plaintiffs] needed to use any special phrasing in their
complaint, as this complaint gave the [defendant] ‘fair notice’
of the [plaintiffs’] claims.”); E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc.,
637 F.3d 435, 447–48 (4th Cir. 2011)
(rejecting the argument that a cause of action for price
16
discrimination had not been sufficiently pleaded “because [the
counterclaimant] did not use the phrase ‘price discrimination’
in its Counterclaim”); see also Okoli v. City of Baltimore, 648
F.3d 216, 224 n.8 (4th Cir. 2011) (“[S]sexual harassment
complaints need not include ‘magic words’ such as ‘sex’ or
‘sexual’ to be effective.” (citing cases)); Labram v. Havel,
43
F.3d 918, 920–21 (4th Cir. 1995) (“Legal labels characterizing a
claim cannot, standing alone, determine whether it fails to meet
[the standard for notice pleading pursuant to Federal Rule of
Civil Procedure 8(a)(2)].”). Our sister circuits have reached
the same conclusion regarding whether precise or specific words
must be present to sufficiently state a cause of action. See,
e.g., Segal v. Fifth Third Bank, N.A.,
581 F.3d 305, 310 (6th
Cir. 2009) (“Courts may look to—they must look to—the substance
of a complaint's allegations . . . . Otherwise, [statutory]
enforcement would [be] reduce[d] to a formalistic search through
the pages of the complaint for magic words . . . .”); United
States v. Davis,
261 F.3d 1, 45 n.40 (1st Cir. 2001)
(“[Plaintiff] need not have used the magic word ‘declaratory
judgment’ in its pleading to put the defendants on notice that
its claims could be resolved with a grant of declaratory
relief.”).
Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), is further
instructive. There, the plaintiff sued Transportation Security
17
Administration (TSA) agents pursuant to 42 U.S.C. § 1983 for
violating his First Amendment right to free speech after he was
arrested for peacefully protesting the TSA’s screening measures.
See id. at 383–84. Although the TSA agents lacked the official
authority to arrest him, the plaintiff alleged that they
effected an arrest of him by reporting his protest to airport
police, who had the requisite authority.
Id. at 386. The
district court dismissed the complaint, stating that the
complaint “doesn’t say directly that [the plaintiff’s arrest]
was at the instruction of the TSA.”
Id. at 385 (alteration in
original) (citation and internal quotation marks omitted). This
Court reversed, noting that “Section 1983 . . . anticipates that
a government official will be ‘responsible for the natural
consequences of his actions[,]’”
id. at 386 (quoting Malley v.
Briggs,
475 U.S. 335, 344 n.7 (1986)), and because “[i]t is an
undoubtedly natural consequence of reporting a person to the
police that the person will be arrested,” “it [was] logical to
assume that [the TSA agents] had a hand in [the plaintiff’s]
arrest,”
id. at 386.
The same is true in this case as in Tobey—that Appellants’
complaint does not recite expressly the elements of bystander
liability as set forth in Randall does not direct the conclusion
that the complaint fails to plead a cause of action for the
same. Appellants alleged that they “were subjected to an
18
unreasonable seizure when they all were subjected to
unreasonable and unwarranted force.” Based on Officer Lowery’s
and Officer Adey’s undisputed presence at the scene of the
altercation and the allegation that the officers “allow[ed] to
be committed . . . unreasonable seizure[s],” it requires no
legal gymnastics or finagling to liken the language of
paragraphs 35 and 36 of the complaint with the notion that
Officer Lowery and Officer Adey (1) knew that fellow officers
were violating Appellants’ constitutional rights by using
excessive force, (2) had a reasonable opportunity to prevent
such violations, and (3) chose not to act. See Randall, 302
F.3d at 204. In other words, it was “an undoubtedly natural
consequence” that, absent intervention by Officer Lowery and
Officer Adey, other officers would continue to violate
Appellants’ constitutional rights. See
Tobey, 706 F.3d at 386.
2.
Appellees’ second argument that they were not put on notice
of Appellants’ bystander-liability claim is that “[a] ‘bystander
liability’ cause of action was never asserted by Appellants in
their discovery responses.” We have reviewed the exhibits
submitted with Appellees’ separate motions for summary judgment
and did not find anything in Appellees’ interrogatories to
Appellants or the transcripts of Appellants’ depositions where
19
Appellees asked Appellants about their theories of liability for
the case. And, perhaps not surprisingly, Appellees have not
provided any citations to instances where they allege that
Appellants were asked about the theories of liability underlying
the case but failed to provide adequate notice of bystander
liability. At best, Appellees asked Appellants to, “Provide a
complete statement of the facts upon which you base your
contention that you were the victim of the use of excessive
force, stating precisely what you contend was done to you and by
whom.” The very essence of bystander liability, however, is
premised on an individual’s passivity and nonparticipation while
another individual violates a person’s constitutional rights—not
on the bystander actively causing the harm. See Randall, 302
F.3d at 204 n.24 (“The rationale underlying the bystander
liability theory is that a bystanding officer, by choosing not
to intervene, functionally participates in the unconstitutional
act of his fellow officer.” (emphasis added)). Thus, to the
extent that Appellees claim that Appellants should have
mentioned bystander liability in response to their discovery
inquiries, Appellees simply did not ask the correct questions.
Regardless, discovery is an exercise in fact-finding, and
it is the complaint—not depositions or interrogatories—that
provides “fair notice” to defendants of the allegations against
them. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
20
(4th Cir. 2010). Thus, inasmuch as we have already determined
above that the plain language of the complaint sufficiently
states a cause of action for bystander liability, whether
“bystander liability” was mentioned specifically in Appellants’
answers and responses to Appellees’ discovery inquiries is
inapposite of the notice issue.
For the reasons set forth above, we affirm the district
court’s post-trial determination that Appellants’ complaint,
specifically paragraphs 35 and 36, sufficiently states a cause
of action for bystander liability pursuant to 42 U.S.C. § 1983.
In doing so, however, we must therefore reverse and vacate the
district court’s summary judgment ruling to the opposite effect.
C.
Having determined that the district court erred at summary
judgment in its construction of the complaint with respect to
bystander liability, it is necessary to sort out which parties
this reversal impacts. As noted above, the only claims that
survived dismissal were the Excessive Force and Battery counts
as to Officer Adey, the § 1983 count as to Officer Lowery, and
the Maryland constitutional count as to the County. Of these
remaining counts, however, only the § 1983 count contains the
“allow to be committed” language that states a cause of action
for bystander liability. Accordingly, inasmuch as bystander
21
liability was not pleaded in the Excessive Force and Battery
counts (nor do Appellants contend otherwise), Officer Adey
cannot be held liable as a bystander. It further follows that,
at least with respect to bystander liability, 5 the County cannot
be held vicariously liable for the Maryland constitutional
count. See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999)
(“As there are no underlying constitutional violations by any
individual, there can be no municipal liability.” (citing City
of L.A. v. Heller,
475 U.S. 796, 799 (1986))).
Appellants’ counsel argued at the summary judgment hearing
that Appellants intended to assert vicarious liability against
the County for all County officers who either committed, or
allowed to be committed, constitutional violations against
Appellants—not just Officer Adey. The language of the Maryland
constitutional count, however, does not sweep this broadly.
Specifically, that count states that, “Seat Pleasant and Prince
George’s County are liable on the basis of respondeat superior
for any violations of the Maryland Constitution by Defendants
Lowery and Adey that deprived plaintiffs of their rights under
Articles 24 and 26.” (Emphasis added.) Although Appellants
5
Appellants also challenge the district court’s grant of
summary judgment to Officer Adey on the Excessive Force and
Battery counts and the grant of summary judgment to the County
on the Maryland constitutional count. We address these
challenges infra at Part III.
22
were not required to list as defendants (either by name or as
John Does) all County officers who were present at the scene to
assert liability against the County for those officers’ actions,
the Maryland constitutional count must have still put the County
on notice of any claims against it due to the actions of
officers not named Adey; it plainly did not. Moreover, the fact
that Appellants incorporated by reference background
paragraphs 1–19 of the complaint—which mention unnamed County
officers as being present at the altercation and assaulting
Appellants—into the Maryland constitutional count is of no
moment. See, e.g., Cook v. Howard, 484 F. App’x 805, 808 n.3
(4th Cir. 2012) (noting that although “the amended complaint
also designated ‘John Does 1–100’ as defendants[,] . . . none of
the counts specifically referred to them”); Lee v. State Bd. for
Cmty. Coll., 62 F.3d 1415 (4th Cir. 1995) (unpublished table
decision) (“In her complaint, [the plaintiff] addressed the
promotion issue as factual background and not as a separate
count. [The defendant] was not on notice that failure to
promote was a separate claim, nor did the district court address
it as such. Consequently, we need not address this issue.”).
To summarize, the only defendant that the reversal of the
summary judgment ruling with respect to bystander liability
impacts is Officer Lowery because he is the only defendant
against whom the § 1983 count survived dismissal. Accordingly,
23
we reverse and remand this case to the district court to
reconsider the parties’ summary judgment papers and to order
additional briefing, if necessary, regarding Officer Lowery’s
potential liability as a bystander to the assaults against
Howard and Barnett. And because we determine that the district
court erred at summary judgment, we need not consider the merits
of Appellants’ motions pursuant to Rules 59(e) and 60(b) that
pertain to the same subject matter.
III.
As noted above, Appellants also appeal the district court’s
grant of summary judgment and denial of their Rule 59(e) motion
with respect to Officer Adey as a principal actor in the
assaults and the County as being vicariously liable for the
same. As with the sufficiency of the complaint, we will review
the district court’s summary judgment ruling and not the order
denying the subsequently filed Rule 59(e) motion; accordingly,
our review is de novo. See Brown, 147 F.3d 310–11.
A.
At the summary judgment hearing, the district court
determined that there was no credible evidence to show that
Officer Adey was responsible for the assaults on Howard,
Barnett, or Stevenson, or that Officer Lowery was responsible
24
for the assaults on Howard or Barnett. 6 We say “credible”
evidence because Appellants did submit multiple affidavits with
their opposition to Appellees’ motion for summary judgment.
Those affidavits—and specifically Barnett’s affidavit—were what
Appellants principally relied upon at the summary judgment
hearing to show that there remained disputes of material fact
for trial. But as the district court noted, Barnett’s affidavit
contradicted his earlier-given testimony and was “riddled with
inconsistencies.” For example, Barnett stated in his affidavit
that he “witnessed an Officer, whose name [he] later learned was
Adey, strike Chris Howard in the face and knock [Howard]
unconscious.” Yet, Barnett previously stated at his deposition
that it was not until “after [Howard was knocked out] that[]
. . . Officer Adey sprung into action.” (Emphasis added.) More
importantly, when Barnett was asked point-blank in his
deposition, “Did you see Officer Adey physically hit, touch or
come into contact with you or Mr. Stevenson or Mr. Bond or Mr.
Howard?”, Barnett replied only, “Mr. Bond.”
6
In their appeal brief, Appellants made the same arguments
against the grant of partial summary judgment to Officer Lowery
with respect to Howard and Barnett as they did in regard to the
grant of summary judgment to Officer Adey with respect to all
Appellants. Accordingly, we need only address the grant of
summary judgment to Officer Adey to resolve the issue.
25
This Court has previously referred to bogus affidavits
submitted in opposition to summary judgment for the purpose of
creating disputes of material fact as “sham” affidavits. See,
e.g., Jackson v. Consolidation Coal Co., 21 F.3d 422 (4th Cir.
1994) (unpublished table decision); see also Barwick v. Celotex
Corp.,
736 F.2d 946, 960 (4th Cir. 1984) (“If a party who has
been examined at length on deposition could raise an issue of
fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham issues of
fact.” (citation and internal quotation marks omitted)). Here,
we recognize that the events immediately preceding the assault
on Appellants occurred suddenly and that Appellants were
subjected to a great deal of stress; thus, we do not accuse
Appellants, and specifically Barnett, of submitting a sham
affidavit to create a bogus material factual dispute with the
goal of defeating summary judgment. Nevertheless, we must
decide this case on the record before us and, based on that
record, we cannot say that the district court erred due to the
inconsistencies between Barnett’s prior testimony and his
affidavit. See
Barwick, 736 F.2d at 960 (“A genuine issue of
material fact is not created where the only issue of fact is to
determine which of the two conflicting versions of the
plaintiff's testimony is correct.”). Accordingly, we affirm the
26
district’s grant of summary judgment to Officer Adey on the
Excessive Force and Battery counts with respect to all
Appellants and the grant of summary judgment to Officer Lowery
in his alleged role as a principal actor (i.e., one who actually
committed the assaults) on the § 1983 count with respect to
Howard and Barnett.
B.
Two corollary rulings flow from our decision to affirm this
aspect of the district court’s grant of summary judgment.
First, as similarly adjudicated above in the context of
bystander liability, because Officer Adey is not liable for
either the Battery or Excessive Force counts as to any of
Appellants, the County is also not liable pursuant to the
Maryland constitutional count on the theory of vicarious
liability. See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.
1999); supra note 5 and accompanying text. And second, it
logically follows that because the district court did not err
under de novo review in granting summary judgment to Officer
Adey, Officer Lowery, and the County, the district court also
did not abuse its discretion by denying Appellants’ Rule 59(e)
motion to alter or amend the ruling on summary judgment.
27
IV.
For the reasons set forth above, we affirm in part, reverse
in part, and remand for reconsideration of Officer Lowery’s and
Howard and Barnett’s summary judgment papers pursuant to a
framework in which bystander liability was properly pleaded.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
28
