Filed: May 05, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1579 DENISE C. WILKINS, Individually and as Personal Representative of the Estate of Justin Lamar Davis, Plaintiff – Appellant, v. VICKI MONTGOMERY, Director, Central State Hospital, in her individual and official capacities, Defendant – Appellee, and CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA; UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their individual and official capacities, Defendants. Appeal from the
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1579 DENISE C. WILKINS, Individually and as Personal Representative of the Estate of Justin Lamar Davis, Plaintiff – Appellant, v. VICKI MONTGOMERY, Director, Central State Hospital, in her individual and official capacities, Defendant – Appellee, and CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA; UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their individual and official capacities, Defendants. Appeal from the U..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1579
DENISE C. WILKINS, Individually and as Personal
Representative of the Estate of Justin Lamar Davis,
Plaintiff – Appellant,
v.
VICKI MONTGOMERY, Director, Central State Hospital, in her
individual and official capacities,
Defendant – Appellee,
and
CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA;
UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their
individual and official capacities,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cv-00152-JAG)
Argued: March 18, 2014 Decided: May 5, 2014
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Gregory and Judge Wynn joined
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellant. John David Gilbody, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney
General, Wesley G. Russell, Jr., Deputy Attorney General, Peter
R. Messitt, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
2
THACKER, Circuit Judge:
Appellant Denise C. Wilkins (“Appellant”) appeals the
district court’s orders striking her expert witness; denying her
second motion to amend her complaint; and granting summary
judgment to Appellee Vicki Montgomery, Assistant Director for
Clinical Administration at Central State Hospital. Appellant
brought this action against Montgomery after her son, Justin
Lamar Davis, was murdered by another patient at Central State
Hospital. She filed three claims: grossly negligent
supervision, gross negligence under the Virginia Wrongful Death
Act, and a 42 U.S.C. § 1983 claim for supervisory liability.
The district court struck Appellant’s expert witness
because he was disclosed in an untimely fashion; denied
Appellant’s second motion to amend her complaint to add two
defendants because such amendment would be futile; and finally,
concluded there was insufficient evidence to support the claims
against Montgomery, who was an assistant director in charge of
administrative matters at the time of Davis’s death. For the
reasons set forth below, we affirm.
I.
A.
On January 5, 2010, Justin Lamar Davis was transferred
to Central State Hospital (“CSH”), an inpatient facility
providing treatment for patients with mental illnesses who are
3
referred by the court system. On February 16, 2010, George
Phillips was admitted to CSH while waiting to be prosecuted for
attempted capital murder. Both Phillips and Davis were housed
in the forensic unit, Ward 39-8.
CSH had a policy whereby staff would issue 24-hour
reports (also called “Administrator On Duty” or “AOD” reports)
regarding patient activity. See J.A. 355-68. 1 AOD reports
during the week of February 21, 2010, reflect that Davis struck
a staff member in the face and hit another patient. On February
24, 2010, Phillips reported feeling threatened by Davis, and
Phillips stated he “will not give [Davis] another warning and he
will end up flying out of here in a helicopter to a hospital.”
Id. at 362. Phillips told the staff that he “could get a pen
out of a staff’s pocket if he wanted and harm [him]self or
anyone else.”
Id.
The next day, on February 25, 2010, Phillips and Davis
had an altercation in the gymnasium. Phillips attacked Davis
from behind, but Davis was not injured. The AOD report, which
was issued the following day on February 26, explained that
Davis “feels others want to harm him and wanted to be moved off
the unit.” J.A. 365. It also stated that Dr. Sridhar Yaratha,
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
the psychiatrist on Davis’s treatment team at CSH, was “aware”
of Davis’s desire to move. Id. In addition, the report stated
that after the altercation, Phillips told staff “he was tired of
Mr. Davis and that he could have easily snapped his neck.”
Id.
On the evening and night of February 25, Phillips was “monitored
constantly by staff and behavior documented [on] every shift.”
Id. Indeed, on that day, and for at least one week prior,
Phillips was on suicide observation status (“SOS”), violence
observation status (“VOS”), and escape observation status
(“EOS”), which required “15 minute[] monitoring checks by
assigned staff.”
Id. at 356, 373.
On February 27, 2010, Davis was also on VOS and also
required 15 minute checks. The charge nurse, Lawrence Harris,
assigned to Essence Thompson, Forensic Mental Health Technician,
the duty of carrying out the 15 minute checks that night.
However, rather than conducting the required checks, both Harris
and Thompson were watching television in a nearby room. Between
9:36 p.m. and 9:56 p.m. that night, Phillips left his room,
entered Davis’s room, and proceeded to strangle Davis to death
in his bed. It was not until the following morning, February
28, that another staff member discovered that Davis was dead.
An investigation by the hospital concluded that
“[s]taff [n]eglect” led to Davis’s murder, and found that
“Thompson . . . remained seated in the chair directly facing the
5
television” on the night of Davis’s death, which “provided []
Phillips the opportunity to do serious harm to [] Davis.” J.A.
377. In addition, the hospital report concluded Harris “failed
to provide the necessary supervision and leadership required to
ensure [] Thompson was at her assigned monitoring post and
carrying out her assigned duties. Instead, Mr. Harris sat one
seat from [] Thompson directly facing the television.” Id.
B.
Exactly two years after Davis’s death, February 27,
2012, Appellant -- Davis’s mother -- filed suit against CSH, the
Commonwealth of Virginia, Vicki Montgomery (“Appellee”), and
“Several as of Yet Unidentified Employees of [CSH].” 2 See
Wilkins v. Cent. State Hosp., No. 3:12-cv-00152-JAG (E.D. Va.
Feb. 27, 2012), ECF No. 1. The original complaint contained
three counts: wrongful death based on gross negligence, grossly
negligent supervision, and a 42 U.S.C. § 1983 claim for
supervisory liability.
On April 4, 2012, Appellant filed the First Amended
Complaint (“FAC”). In the FAC, Appellant dropped the state
2
At oral argument, Appellant’s counsel told the court that
he filed this action 23 months after Davis’s death; however, we
note that this action was actually filed on the final day in the
two-year statute of limitations period. See Oral Argument at
18:10-20, Wilkins v. Montgomery, No. 13-1579 (4th Cir. Mar. 18,
2014), available at http://www.ca4.uscourts.gov/oral-
argument/listen-to-oral-arguments.
6
defendants, and the only defendants remaining were Appellee (in
her individual and official capacity), who was incorrectly
listed as “director” of the CSH, and “Several as of Yet
Unidentified Employees of [CSH].” J.A. 9. The FAC contained
the same three counts and allegations as the original complaint.
On April 11, 2012, Appellee filed a motion to dismiss,
but withdrew that motion on May 4, 2012, when she filed a motion
for summary judgment. In the motion for summary judgment,
Appellee argued that because she was not director of CSH at the
time of Davis’s death, she had no supervisory responsibility or
authority over any security personnel, treatment staff, or
medical staff.
The district court entered a pre-trial order and set
the trial date for February 19, 2013. Appellant’s Rule 26(a)(2)
expert disclosures were to be produced by October 22, 2012;
however, this deadline was moved back to November 21, 2012, by
agreement of the parties. The deadline for motions challenging
experts was December 21, 2012. On November 21, Appellant
provided the name of her purported expert witness, Dr. Pogos H.
Voskanian, along with a curriculum vitae, but no written report.
Almost two weeks after the November 21 deadline for Rule 26
disclosures -- which had been agreed to by Appellant -- on
December 4, 2012, Appellant disclosed what she called a
7
“preliminary report” by Dr. Voskanian. 3 The preliminary report,
as its name suggests, was only one page and simply contained a
list of the materials the expert reviewed, and two sentences of
opinion:
Based on review of the above listed documents, it is
my opinion to a reasonable degree of medical certainty
that the care and treatment provided to Mr. Justin
Lamar Davis fell substantially below an acceptable
standard of care. Administration of the hospital
failed to provide adequate services and supervision;
and members of the treatment team failed to provide
adequate monitoring, safety and treatment, amounting
to deliberate indifference to the patient’s needs and
premature death of Mr. Justin Davis.
J.A. 99.
On December 13, 2012, Appellee filed a renewed motion
for summary judgment and a motion to exclude Appellant’s expert
witness. On December 21, 2012 -- now one month after the expert
disclosure date agreed to by Appellant, and on the court’s
deadline for filing motions to exclude experts -- Appellant
filed an additional, nine-page expert report by Dr. Voskanian.
The district court held a motions hearing on February
7, 2013, and granted the motion to exclude Dr. Voskanian the
following day. See J.A. 268-70 (the “February 8 Order”).
3
Appellant submits that Dr. Voskanian actually provided
Appellant’s counsel with the preliminary report on November 26,
but “through inadvertent oversight,” it was not provided to
Appellee’s counsel until December 4. J.A. 67.
8
Appellant then filed a Rule 59 motion to alter or amend the
February 8 Order.
In the meantime, on December 27, 2012, Appellant filed
a motion for leave to file a second amended complaint. She
sought only to add as defendants Dr. Charles Davis -- the actual
director of CSH at the time Davis was murdered -- and Dr.
Yaratha.
On April 10, 2013, the district court held a hearing
on the remaining outstanding motions, including the motion to
amend. The court ruled from the bench, granting the motion for
summary judgment, and denying the motion to amend the complaint
and the Rule 59 motion to alter or amend its order excluding Dr.
Voskanian. A formal order issued the following day. See J.A.
663 (the “April 11 Order”).
Appellant filed a timely notice of appeal of the
February 8 and April 11 Orders.
II.
We review the district court’s exclusion of a
plaintiff’s expert witness, its denial of a motion to amend the
complaint, and its ruling on a Rule 59 motion to alter or amend
for abuse of discretion. See S. States Rack & Fixture, Inc. v.
Sherwin–Williams Co., 318 F.3d 592, 595 (4th Cir. 2003); Laber
v. Harvey,
438 F.3d 404, 428 (4th Cir. 2006); Sloas v. CSX
Transp., Inc.,
616 F.3d 380, 388 (4th Cir. 2010). As to the
9
motion to amend the complaint, we review the district court’s
analysis of the law regarding relation back de novo. See
Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir.
2006).
We review the district court’s grant of summary
judgment de novo. See Pisano v. Strach, 743 F.3d 927, 932 (4th
Cir. 2014). Summary judgment is appropriate if a party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A genuine dispute exists
if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. In
considering a motion for summary judgment, the court
is required to view the facts and draw reasonable
inferences in a light most favorable to the nonmoving
party. The plaintiff is entitled to have the
credibility of all his evidence presumed. The party
seeking summary judgment has the initial burden to
show absence of evidence to support the nonmoving
party’s case. The opposing party must demonstrate
that a triable issue of fact exists; he may not rest
upon mere allegations or denials.
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (internal
citations omitted).
III.
A.
We first discuss Appellant’s challenge to the district
court’s exclusion of her expert, Dr. Voskanian. This issue
implicates both the February 8 Order excluding Dr. Voskanian,
10
and the portion of the April 11 Order denying Appellant’s Rule
59 motion to alter or amend the February 8 Order.
At the February 7 motions hearing, the district court
ruled as follows:
The expert will be excluded. You just can’t -- if we
were to allow him to testify it would just turn
everything that is in the pretrial order on its head.
Let me just say that I think the question of
deliberate indifference, if that is the standard used
in this case, is one you can argue to the jury based
on what the administrators knew and when they knew it.
I don’t think you need an expert on that.
J.A. 558. At the April 10 hearing, regarding the Rule 59
motion, the district court stated,
Th[e] motion [to alter or amend the February 8 Order]
will be denied . . . , for two reasons. First, the
plaintiff was just way late in naming an expert in
this case. And I know how hard it is to find experts
for cases like this. But we have those deadlines so
we can move in an orderly fashion. And the lateness
with which the expert was identified would not allow
that to happen. Second, the expert witness’ report is
pretty much a brief of legal conclusions in the case,
and I don’t think it is something that offers expert
opinions on the issues on which an expert might be
allowed to testify in this case.
Id. at 661.
The Pre-Trial Order in this case stated, “The parties
will disclose the information required under Rule 26(a)(2) on
the following schedule: Party with the burden of proof on an
issue by October 22, 2012,” which was later moved to November
21, 2012, by consent of the parties. Wilkins v. Cent. State
Hosp., No. 3:12-cv-00152 (E.D. Va. filed Aug. 21, 2012), ECF No.
11
26 at 2 (pre-trial order); see also id. ECF No. 30 (filed Oct.
25, 2012) (order granting consent motion to amend pre-trial
order).
Federal Rule of Civil Procedure 26(a)(2) provides,
[A] party must disclose to the other parties the
identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or
705. . . . Unless otherwise stipulated or ordered by
the court, this disclosure must be accompanied by a
written report -- prepared and signed by the witness
-- if the witness is one retained or specially
employed to provide expert testimony in the case[.]
Fed. R. Civ. P. 26(a)(2)(A), (B) (emphasis supplied).
Furthermore, “[a] party must make these disclosures at the time
and in the sequence the court orders.” Fed. R. Civ. P.
26(a)(2)(D) (emphases supplied). Therefore, because Appellant
did not disclose the written report by the agreed-upon deadline,
she necessarily violated the Pre-Trial Order and Rule 26(a)(2).
In light of this violation, we cannot say the district
court abused its discretion in excluding Dr. Voskanian as an
appropriate sanction. Rule 37(c)(1) provides,
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified
or is harmless.
Fed. R. Civ. P. 37(c)(1). This court has explained,
Rule 26 disclosures are often the centerpiece of
discovery in litigation that uses expert witnesses. A
party that fails to provide these disclosures unfairly
12
inhibits its opponent’s ability to properly prepare,
unnecessarily prolongs litigation, and undermines the
district court’s management of the case. For this
reason, “we give particularly wide latitude to the
district court’s discretion to issue sanctions under
Rule 37(c)(1).”
Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir.
2005) (quoting S. States Rack & Fixture, Inc. v. Sherwin–
Williams Co.,
318 F.3d 592, 595 (4th Cir. 2003)) (alteration
omitted); see also S.
States, 318 F.3d at 592 n.2 (“The Rule
37(c) advisory committee notes emphasize that the ‘automatic
sanction’ of exclusion ‘provides a strong inducement for
disclosure of material that the disclosing party would expect to
use as evidence.’” (quoting Fed. R. Civ. P. 37(c) advisory
committee note, 1993 Amendment) (emphasis supplied)). 4
In Southern States, we elaborated,
The language of Rule 37(c)(1) provides two exceptions
to the general rule excluding evidence that a party
seeks to offer but has failed to properly disclose:
(1) when the failure to disclose is “substantially
justified,” and (2) when the nondisclosure is
“harmless.”
. . .
[I]n exercising its broad discretion to determine
whether a nondisclosure of evidence is substantially
justified or harmless for purposes of a Rule 37(c)(1)
4
See also Campbell v. United States, 470 F. App’x 153, 156
(4th Cir. 2012) (per curiam) (“[T]he Federal Rules impose an
‘automatic sanction’ of exclusion of a party’s expert witness
for failure to adhere to the expert witness requirements set
forth in Rule 26(a).” (quoting S. States, 318 F.3d at 592 n.2)).
13
exclusion analysis, a district court should be guided
by the following factors: (1) the surprise to the
party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3)
the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence;
and (5) the non-disclosing party’s explanation for its
failure to disclose the evidence.
318 F.3d at 596-97 (emphasis supplied) (alterations omitted).
The burden of establishing these factors lies with the non-
disclosing party -- in this case, Appellant. See
id. at 596
(“‘It is the obligation of the party facing sanctions for
belated disclosure to show that its failure to comply with Rule
37(c)(1) was either justified or harmless.’” (quoting Wilson v.
Bradlees of New England, Inc.,
250 F.3d 10, 21 (1st Cir. 2001))
(alterations omitted). Appellant argues that the district court
was required to weigh the Southern States factors before
excluding Dr. Voskanian, it failed to do so, and even if it had
done so, it would have concluded that the late disclosure was
harmless. 5 We disagree on all counts.
First of all, the district court was not required to
tick through each of the Southern States factors. Southern
States explains that district courts have “broad discretion” to
decide harmlessness and “should” -- not “shall” -- “be guided
by” the five factors. S. States, 318 F.3d at 597; see also
5
Appellant does not argue the late disclosure was
“substantially justified.” S. States, 318 F.3d at 597.
14
United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (“[T]he
common meaning of ‘should’ suggests or recommends a course of
action, while the ordinary understanding of ‘shall’ describes a
course of action that is mandatory.”); Hoyle v. Freightliner,
LLC,
650 F.3d 321, 330 (4th Cir. 2011) (“[T]he fact that the
district court did not expressly mention the five-factor test we
adopted in Southern States is not indicative of an abuse of
discretion.”); Carr v. Deeds,
453 F.3d 593, 604 (4th Cir. 2006)
(affirming the district court’s exclusion of testimony for Rule
26(a) violation when the Southern States factors were not
mentioned). Thus, the district court’s failure to cite Southern
States and specifically address each of the five factors listed
therein does not amount to an abuse of discretion.
Second, the district court implicitly addressed some
of the Southern States factors when deciding whether to exclude
Dr. Voskanian as an expert witness. For example, it invoked the
third factor when it discussed the disruption of the trial date
and Pre-Trial scheduling order. See J.A. 558 (“[I]f we were to
allow him to testify it would just turn everything that is in
the pretrial order on its head.”); id. at 661 (“[T]he plaintiff
was just way late in naming an expert in this case. . . . [W]e
have those deadlines so we can move in an orderly fashion. And
the lateness with which the expert was identified would not
allow that to happen.”). The district court also touched on the
15
fourth factor, when it stated that the expert testimony would
not assist a trier of fact. See id. at 558 (“Let me just say
that I think the question of deliberate indifference . . . is
one you can argue to the jury based on what the administrators
knew and when they knew it. I don’t think you need an expert on
that.”);
id. at 661 (“[T]he expert witness’ report is pretty
much a brief of legal conclusions in the case, and I don’t think
it is something that offers expert opinions on the issues on
which an expert might be allowed to testify in this case.”).
And, as to factor five, Appellant provided no reason whatsoever
for its failure to disclose the evidence in a timely manner.
See Appellant’s Br. 28-29 (providing arguments on the first four
factors but not the fifth).
Finally, our own review of the Southern States factors
demonstrates that Appellant’s error was far from harmless. In
addition to the reasons provided by the district court,
Appellant’s initial disclosure failed to provide Appellee with
any concrete explanation of Dr. Voskanian’s potential testimony.
The disclosure was made after the agreed-upon expert disclosure
date, after discovery was closed, after Appellee filed a motion
for summary judgment, and on the very date set by the court for
the filing of motions to exclude experts. It is hard to accept
that these events would not serve as a surprise to Appellee, or
that Appellee could easily cure such a surprise. See Hoyle, 650
16
F.3d at 330 (finding no abuse of discretion where district court
excluded expert declaration when the disclosing party notified
his opponent of the declaration “not only after the close of
discovery but after [the opponent] had filed its motion for
summary judgment”).
For these reasons, we find no abuse of discretion in
the district court’s exclusion of Dr. Voskanian as an expert
witness.
B.
We next turn to Appellant’s argument that the district
court abused its discretion in denying her motion to amend her
complaint for the second time.
In the proposed amended complaint, Appellant sought to
add two defendants: Dr. Davis, director of CSH at the time
Justin Davis was murdered, and Dr. Yaratha, the psychiatrist on
Justin Davis’s treatment team at CSH. The district court denied
the motion because it would be futile, i.e., there was no
evidence of a “pervasive risk of constitutional injury” and no
evidence that Drs. Davis and Yaratha were “deliberately
indifferent to the knowledge of the risk.” J.A. 659. As
explained more fully below, we hold that Appellant’s proposed
third amended complaint would not relate back; therefore, we
affirm the district court on that ground. See United States v.
Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“We
17
may . . . affirm the district court on any ground in the
record[.]”).
1.
Appellant filed the second motion to amend and
proposed amended complaint on December 27, 2012, ten months
after the statute of limitations had expired. See Lewis v.
Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991)
(“There is no federal statute of limitations for § 1983 claims,
so the state limitations period which governs personal injury
actions is applied. . . . Virginia has a two-year statute of
limitations for personal injury claims.” (citing Va. Code Ann.
§ 8.01–243(A))); A Soc’y Without A Name v. Virginia,
655 F.3d
342, 348 (4th Cir. 2011) (applying Virginia law) (“With regard
to the § 1983 . . . claim[], the statute-of-limitations period
. . . is two years.”). Therefore, “unless the amended complaint
. . . relates back to the date of the original filing, it will
be barred by the statute of limitations and subject to
dismissal.” Locklear v. Bergman & Beving AB,
457 F.3d 363, 365
(4th Cir. 2006).
In determining whether an amended complaint relates
back, we look to Federal Rule of Civil Procedure 15(c)(1), which
provides,
An amendment to a pleading relates back to the date of
the original pleading when,
18
. . .
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence
set out -- or attempted to be set out -- in the
original pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, 6 the party to be brought in by amendment:
(i) received such notice of the action that it
will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1); see also Robinson v. Clipse, 602 F.3d
605, 608 (4th Cir. 2010) (explaining that when a proposed
amendment changes the party against whom a claim is asserted,
the amending party must satisfy the requirements set forth in
Rule 15(c)(1)(C)(i) and (ii)). This rule “presumes that the
amending party can make the amendment, although it does
constrain substantially the type of amendment that may relate
back.” Goodman v. Praxair, Inc.,
494 F.3d 458, 469 (4th Cir.
2007) (en banc).
6
Rule 4(m) requires that a defendant be served within 120
days after the complaint is filed, absent good cause. See Fed.
R. Civ. P. 4(m).
19
When an amendment seeks to add a defendant, the focus
turns to the notice to that individual or entity. Specifically,
as to Rule 15(c)(1)(C)(ii), the Supreme Court has clarified,
“The question . . . is not whether [the amending party] knew or
should have known the identity of . . . the proper defendant,
but whether [the potential defendant] knew or should have known
that it would have been named as a defendant but for an error.”
Krupski v. Costa Crociere, 560 U.S. 538, 548 (2010). We have
explained,
Rule [15]’s description of when such an amendment
relates back to the original pleading focuses on the
notice to the new party and the effect on the new
party that the amendment will have. These core
requirements preserve for the new party the
protections of a statute of limitations. They assure
that the new party had adequate notice within the
limitations period and was not prejudiced by being
added to the litigation.
Goodman, 494 F.3d at 470 (citation omitted) (emphases in
original); see also Norton v. Int’l Harvesters Co.,
627 F.2d 18,
20 (7th Cir. 1980) (“[P]rejudice within the meaning of [Rule
15] is prima facially established where a party named as an
additional defendant in the amended complaint is deprived of the
defense of the statute of limitations.”); Hageman v. Signal L.
P. Gas, Inc.,
486 F.2d 479, 484 (6th Cir. 1973) (“[A]n amendment
adding another party is a new cause of action which cannot be
added after the time limitation has expired.”); cf.
Goodman, 494
F.3d at 468 (“Rule 15(c) must be understood to freely permit
20
amendment of pleadings and their relation-back so long as the
policies of statutes of limitations have been effectively
served.”).
2.
The proposed amended complaint in this case clearly
meets the first requirement of Rule 15(c)(1)(C)(3) -- that Rule
15(c)(1)(B) is satisfied, that is, the claims in the amended
complaint “arose out of the conduct, transaction, or occurrence”
in the original complaint -- because it seeks to add defendants
rather than to alter the underlying causes of action. See
Locklear, 457 F.3d at 365-66. Therefore, we focus on whether,
within the period of time provided by Rule 4(m), Drs. Davis and
Yaratha “received such notice of the action that [they] w[ould]
not be prejudiced in defending on the merits,” and “knew or
should have known that the action would have been brought
against [them], but for a mistake concerning the proper party’s
identity.” Fed. R. Civ. P. 15(c)(1)(C)(i), (ii).
Appellant argues that Drs. Davis and Yaratha had
notice of the complaint and thus, “there was absolutely no
prejudice that could be identified.” Appellant’s Br. 32.
However, the record evidence shows that Dr. Yaratha did not
receive notice of the lawsuit against Appellee until he was
asked to attend a deposition in the matter on November 8, 2012
-- eight months after the initial complaint was filed and the
21
statute of limitations had expired, and four months after the
time period set forth in Rule 4(m). See J.A. 260 (Yaratha
Declaration) (“I first became aware of the lawsuit . . . on
November 8, 2012, when I was asked to attend a deposition in
this matter.”). Dr. Davis was not made aware until December 28,
2012, when he received an email from Appellee’s office about the
case -- ten months after the initial complaint was filed and the
statute of limitations had expired, and six months after the
time period set forth in Rule 4(m). See id. at 259 (Davis
Declaration), 467-68 (Davis Deposition).
Appellant offers no evidence to the contrary.
Instead, she merely contends that Drs. Davis and Yaratha
“clearly had notice of the complaint,” based on the allegations
that they were represented by the same office as Appellee.
Appellant’s Br. 32. There is zero support in the record for
this contention. Rather, it is belied by the record. See J.A.
444, 489 (indicating that Dr. Davis and Dr. Yaratha were
represented at their depositions by the law firm Rawls McNelis &
Mitchell, not by the Office of the Attorney General, which
represented Appellee). Appellant further asserts that Dr. Davis
had notice of the lawsuit because he “still has an office and
practices medicine [at CSH].” Appellant’s Br. 35. This
assertion is also belied by the record. See J.A. 449-50 (Dr.
22
Davis’s deposition, stating that he retired from CSH in May
2010).
Appellant also submits that knowledge should be
imputed to Drs. Davis and Yaratha because they have “‘a
sufficient identity of interest with the original defendant.’”
Appellant’s Br. 36 (quoting Goodman, 494 F.3d at 474). Goodman
states, “we can conclude that when a plaintiff alleges a
comprehensible claim against one of a group of closely related
and functioning business entities or corporations, the other
entities in that group, barring a contrary showing, will be
charged with knowledge under Rule 15[] of the entity properly
answerable to the claim.”
Goodman, 494 F.3d at 475.
But in Goodman, the business entities in question were
a parent and subsidiary corporation, which were represented by
the same lawyers. See Goodman, 494 F.3d at 475. Indeed, the
subsidiary corporation in Goodman “concede[d] it had notice but
thought . . . that Goodman intended to sue [the parent
corporation].”
Id. This case is markedly different. As
explained above, the evidence demonstrates that Drs. Yaratha and
Davis did not receive notice of the lawsuit against Appellee
until November 8, 2012, and December 28, 2012, respectively, and
they had different attorneys than Appellee. Moreover, Appellant
has provided no evidence that Dr. Davis even kept in touch with
the employees at CSH after his retirement in May 2010 such that
23
he could still even be considered “closely related” to CSH.
Goodman, 494 F.3d at 475. There is likewise no evidence that
Dr. Yaratha worked so closely with Appellee as to be imputed
with knowledge of the lawsuit against her.
Therefore, in reviewing the evidence presented at
summary judgment, we must conclude that Drs. Davis and Yaratha
“received [no] notice of the action” against Appellee within the
120-day period set forth in Rule 4(m) and were thus “prejudiced
in defending [the claim] on the merits.” Fed. R. Civ. P.
15(c)(1)(C)(i). Compare Krupski, 560 U.S. at 554 (holding that
amended complaint should relate back because the district court
found that the added party had “constructive notice” of the
initial complaint within the Rule 4(m) period, and the added
party did not challenge that finding), with J.A. 657-58
(district court finding that “neither [Dr.] Yaratha or [Dr.]
Davis had notice of the suit within 120 days of its filing”).
Appellant has likewise failed to produce any evidence that the
potential defendants “knew or should have known” that the action
would have been brought against them, but for an error in naming
Appellee. Fed. R. Civ. P. 15(c)(1)(C)(ii);
Krupski, 560 U.S. at
548. Thus, the proposed amendment to the complaint would not
relate back, and the district court did not abuse its discretion
in denying the motion to amend.
24
C.
We now turn to whether the district court erred in
granting summary judgment in favor of Appellee on the 42 U.S.C.
§ 1983 and gross negligence claims. Having concluded, supra,
that Drs. Davis and Yaratha cannot be added to this action, and
that Dr. Voskanian was properly excluded as an expert, we need
only address the non-expert record evidence with respect to
Appellee.
1.
§ 1983 Claim
In order to succeed on a § 1983 claim for supervisory
liability, a plaintiff must show:
(1) that the supervisor had actual or constructive
knowledge that h[er] subordinate was engaged in
conduct that posed “a pervasive and unreasonable risk”
of constitutional injury to citizens like the
plaintiff;
(2) that the supervisor’s response to that knowledge
was so inadequate as to show “deliberate indifference
to or tacit authorization of the alleged offensive
practices,”; and
(3) that there was an “affirmative causal link”
between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). As to the
first element, “[e]stablishing a ‘pervasive’ and ‘unreasonable’
risk of harm requires evidence that the conduct is widespread,
or at least has been used on several different occasions and
25
that the conduct engaged in by the subordinate poses an
unreasonable risk of harm of constitutional injury.” Id. As to
the second element, a plaintiff “may establish deliberate
indifference by demonstrating a supervisor’s continued inaction
in the face of documented widespread abuses.”
Id. (internal
quotation marks omitted). Finally, as to the third element,
“proof of causation may be direct . . . where the policy
commands the injury of which the plaintiff complains . . . or
may be supplied by the tort principle that holds a person liable
for the natural consequences of his actions.”
Id. (internal
quotation marks and alterations omitted).
Appellant fails to provide sufficient evidence on any
of these three elements with regard to Appellee. First, there
is no evidence that Appellee had actual or constructive
knowledge that Harris and Thompson, the charge nurse and mental
health technician, were engaged in conduct that posed “a
pervasive and unreasonable risk” of constitutional injury to
Davis. To the contrary, Appellee was not even working on the
night in question, and there is no evidence the staff members
had behaved in such a manner in the past such that their conduct
was “widespread,” or that they had neglected their duties on
“several different occasions.” Shaw, 13 F.3d at 799.
Nonetheless, Appellant argues that Appellee had an
overarching duty to keep the patients at CSH safe. See
26
Appellant’s Br. 12 (citing J.A. 160, 161-62) (Appellee agreed
that she “was [in addition to Dr. Davis] responsible for running
the hospital” and that the hospital administration had a non-
delegable obligation “to provide a safe environment for the
patients[.]”). While this may be true, it does not relieve
Appellant of the burden of showing a pervasive risk of harm that
Appellee knew about, actually or constructively -- a burden that
Appellant has not met.
In addition, Appellant assumes that Appellee saw all
of the AOD reports regarding the tension between Davis and
Phillips. But as Appellee points out, she only worked Monday
through Thursday during the week that Davis was murdered. Her
time sheet shows that she clocked out at 6:41 p.m. on Thursday,
February 25, 2010, and did not work Friday, Saturday, or Sunday
of that weekend. Therefore, the record evidence shows that
Appellee would not have seen the AOD report about the
occurrences of February 25, which described the altercation in
the gymnasium between Davis and Phillips, because it was
generated the following day, February 26. In fact, the only
knowledge of harm Appellee had about Davis and Phillips that
week was the report from February 24, which reflected that
Phillips felt threatened by Davis, and that Phillips had stated
that he (Phillips) could harm himself or someone else.
27
Appellant has also failed to show sufficient evidence
that Appellee was deliberately indifferent to or tacitly
authorized widespread abuses of patient supervision. In this
regard, Appellant points to the deposition of the nursing
coordinator and supervisor, Bernadette Spruill, who stated that
she was not aware that Phillips threatened to hurt or kill
Davis, even though such information was listed in the AOD
reports from that week. As a result, Spruill did not “take any
actions in terms of staffing the unit to address any concerns
regarding Mr. Davis’s safety.” J.A. 416. While this lack of
communication is gravely unfortunate, Appellant proffers no
evidence to show either that this was a widespread problem or
that Appellee knew about it but did nothing to remedy the
situation.
In fact, there was a system in place to address
threats like those made to Davis. Phillips was placed on VOS,
EOS, and SOS, and was supposed to be monitored every 15 minutes,
according to hospital policy. And, the fact that this was not
done by staff members on a Friday night, which was Appellee’s
day off, does not impute deliberate indifference to her.
Appellant relies heavily on Slaken v. Porter, 737 F.2d
368 (4th Cir. 1984). But even that case recognized that a
supervisor cannot “reasonably be expected to guard against the
deliberate criminal acts of his properly trained employees when
28
he has no basis upon which to anticipate the misconduct.” Id.
at 373. Here, there is no evidence whatsoever that Appellee
could have known that the nursing staff would watch television
rather than check on Davis and Phillips.
In addition, Dr. Yaratha had considered the idea of
moving Davis to a different ward, but after deliberation,
decided against it. See J.A. 377 (Dr. Yaratha “met and
discussed informally with [other doctors] about moving Mr.
Davis. It was decided that the best place to monitor and manage
[him] was on ward 8. Mr. Davis was very violent and aggressive
before coming to ward 8 and during his first few weeks on ward
8. He would not do well with changing wards.”). Thus, to the
extent the decisions of Dr. Yaratha and others can be imputed to
Appellee, those decisions clearly illustrate concern and
discussion, rather than deliberate indifference.
Finally, Appellee’s job duties were patently
administrative in nature. See J.A. 146-48 (Appellee’s position
description for “Assistant Director for Clinical
Administration,” which included, inter alia, “provid[ing]
direction to and oversight of the operations of [CSH]”;
“assess[ing], develop[ing], monitor[ing], and evaluat[ing] the
clinical and forensic operations of the hospital”; and
“[p]rovid[ing] administrative and operational supervision to
medical/clinical department and forensic services directors”).
29
Nowhere is there a requirement that she have supervision over
the security or monitoring of the patients in Ward 39-8.
For these reasons, Appellant has failed to meet her
burden on summary judgment, and the district court did not err
in granting Appellee’s motion on the § 1983 claim.
2.
Gross Negligence
Appellant also brought state law claims for common law
grossly negligent supervision, and gross negligence under the
Virginia Wrongful Death Act, Va. Code Ann. § 8.01-50. “Gross
negligence” is
a degree of negligence showing indifference to another
and an utter disregard of prudence that amounts to a
complete neglect of the safety of such other person.
This requires a degree of negligence that would shock
fair-minded persons, although demonstrating something
less than willful recklessness.
Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 918 (Va.
2004). Gross negligence is more serious than simple negligence,
which “involves the failure to use the degree of care that an
ordinarily prudent person would exercise under similar
circumstances to avoid injury to another.”
Id.
Proof of gross negligence depends upon the facts and
circumstances of the particular case. If fair minded
people can differ respecting the conclusion to be
drawn from the evidence, a jury question is presented.
On the other hand, if the evidence is such that fair
minded people cannot differ, the question whether
gross negligence has been established is one of law.
30
Meagher v. Johnson, 389 S.E.2d 310, 311 (Va. 1990) (internal
quotation marks and alterations omitted).
Based on the dearth of evidence provided by Appellant,
as explained above, Appellant falls far short of creating a
triable issue as to whether Appellee’s actions, or alleged lack
thereof, “would shock fair-minded persons.” Indeed, the
Virginia cases allowing gross negligence claims to proceed to
trial are far more egregious. See, e.g., Koffman v. Garnett,
574 S.E.2d 258, 260 (Va. 2003) (allowing gross negligence issue
to go to a jury where 260-pound football coach aggressively
tackled a 13-year-old, 144-pound, inexperienced football player,
breaking his left arm); Nichols v. Brizendine,
169 S.E.2d 457,
460 (Va. 1969) (same, where driver of an automobile deliberately
increased speed on a straight portion of a narrow road, which
had an upcoming curve that driver knew about, and the car
skidded 46 feet and collided head-on with a tree, severely
injuring the passengers). Thus, as a matter of law, Appellee is
entitled to summary judgment on this claim.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
31
