John Cook, III v. Raymond Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-00332-JFM Copies to all parties and the district court/agency. [998924001].. [11-1601]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1601

JOHN COOK, III, Individually, and as Administrator for the
Estate of John Gideon Cook, IV; PATRICIA COOK; LINDA
HAMMOND, parent and Guardian Ad Litem for Minor J.A.C.;
DENISE BROWN, parent and Guardian Ad Litem for Minor J.C.,
Plaintiffs - Appellants,
v.
RAYMOND A. HOWARD, police officer (ID#C646); DWAYNE GREEN,
police officer (ID#G716); BALTIMORE POLICE DEPARTMENT;
FREDERICK H. BEALEFELD, Commissioner, Baltimore City Police
Department; JOHN BEVILAQUA, Colonel,
Defendants - Appellees,
and
CITY OF BALTIMORE; JOHN DOES 1-100,
Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:10-cv-00332-JFM)

Argued:

May 16, 2012

Before AGEE and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

August 24, 2012

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion. Judge Diaz wrote an
opinion dissenting in part and concurring in part.

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ARGUED: Olugbenga
for Appellants.
BALTIMORE
CITY
Appellees.
ON
BALTIMORE
CITY
Appellees.

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Olatokumbo Abiona, Philadelphia, Pennsylvania,
William Rowe Phelan, Jr., Glenn Todd Marrow,
LAW
DEPARTMENT,
Baltimore,
Maryland,
for
BRIEF: George A. Nilson, City Solicitor,
LAW
DEPARTMENT,
Baltimore,
Maryland,
for

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Cook, III, individually and as administrator of the
estate of John Cook, IV (“Cook”), and various members of the
Cook

family

(collectively

“the

Appellants”),

appeal

from

the

district court’s judgment against them on their claims against
the Baltimore City Police Department (“BCPD”) and several BCPD
officers. 1

The Appellants alleged claims pursuant to 42 U.S.C.

§§ 1983 and 1985 for violations of the Fourth and Fourteenth
Amendments
recover

arising

damages

statutes.

from

under

The

Cook’s

death.

Maryland’s

Appellants

appeal

They

wrongful
numerous

also

death

sought

and

decisions

to

survival
of

the

district court that resulted in the adjudication of all of their
claims in favor of the BCPD and the BCPD officers.

For the

following reasons, we affirm the judgment of the district court.

I.

Facts and Relevant Proceedings Below
A.

Preliminary Factual Allegations

The light in which we review the facts varies based on the
stage of the proceedings at which the claims were resolved.

For

claims dismissed at the motion to dismiss stage, we must accept
as true the well-pled facts in the complaint, viewed in the
1

The Appellants consist of Cook’s mother and father (John
Cook, III) as well as the mothers of Cook’s two minor children
(as parents and guardians ad litem for those children) and
Cook’s Estate.
3

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light most favorable to the plaintiff.
637 F.3d 503, 505 (4th Cir. 2011).

Brockington v. Boykins,

For the claims resolved at

the summary judgment stage, we review the entire record before
us

in

the

light

most

favorable

to

the

non-moving

party.

Merchant v. Bauer, 677 F.3d 656, 658 n.1 (4th Cir. 2012).
A

straight-forward

recitation

of

the

Appellants’

allegations is complicated by changes made to those allegations
as the case proceeded.

Those changes alter which defendant or

third party is purported to have engaged in certain conduct.
times the allegations directly contradict each other.

At

Far more

troubling, the Appellants persist in asserting facts and conduct
that

lack

any

contradicted
during

basis

by

in

undisputed

discovery.

To

say

the

record

evidence
that

the

or

in

that

the

are

record

operative

directly
developed

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
neighborhood.

officers

who

were

on

patrol

in

a

Baltimore

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.
4

During the course

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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

up

to

have

conspired

to

cover

the

circumstances

surrounding Cook’s death by, among other things, conducting an
inadequate investigation and filing false reports related to his
death.

B.

The Amended Complaint

In February 2010, the Appellants filed this action in the
District

Court

for

the

District

of

Maryland.

The

amended

complaint (which is the operative pleading for all issues on
appeal)

was

brought

against

the
5

BCPD;

BCPD

Commissioner

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Frederick Bealefeld, the highest ranking officer in the BCPD;
BCPD Colonel John Bevilaqua, the Chief of the BCPD detective
division; BCPD Officers Raymond A. Howard and Dwayne Green; and
“Defendants John Does 1-100.” 2

(J.A. 70-71.)

The amended complaint alleged five counts:

Counts I and

III set forth claims under 42 U.S.C. §§ 1983 and 1985 against
the

BCPD,

Commissioner

Bealefeld,

and

Colonel

Bevilaqua

for

violations of the Fourth and Fourteenth Amendments with respect
to the events surrounding Cook’s death.
asserted

that

officers

and

the

BCPD

that

was

its

liable

customs,

The amended complaint

for

the

conduct

practices,

and

of

its

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

surrounding Cook’s death.
unwieldy

and

difficult

to

liability

for

the

events

Although the amended complaint is
parse,

it

also

appears

that

these

defendants, or at least Colonel Bevilaqua, were alleged to have
violated Cook’s constitutional rights by conspiring to cover up
the events surrounding his death.

2

Several spellings of “Bevilaqua” and “Bealefeld” appear in
the briefs and record; for consistency, we use the spellings on
the docket sheet.
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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

complaint

fence
also

such

that

alleged

that

Cook

fell

Officer

from

it.

The

Howard

did

“most

amended
of

the

aggressive hitting of the fence that [Cook] hung on to,” engaged
in

“high-fiving

racial

epithets

and
and

laughing”

following

inflammatory

Cook’s

language,

and

death,
engaged

used
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

surrounding Cook’s death.
allegations

against

conspiracy

to

(J.A. 77-78.)

Officers

Howard

and

cover

up

the

events

Based on these factual
Green,

Count

II

set

forth claims under 42 U.S.C. §§ 1983 and 1985 for violations of
the

Fourth

and

Fourteenth

Amendments,

and

Counts

IV

and

V

alleged survival and wrongful death actions under Maryland state
law. 3

3

As noted, the amended complaint also designated “John Does
1-100” as defendants; however, none of the counts specifically
referred to them.

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C.
The

BCPD,

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Proceedings Below

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

concluding

that

the

sufficient

facts

to

district
amended

court

granted

complaint

establish

did

liability

the
“not

under

motion,
allege[]

Monell

v.

Department of Social Services, 436 U.S. 658 (1978),” and that
the “conclusory allegations” were “clearly . . . insufficient
under” the standards set by the Supreme Court in Bell Atlantic
Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).

Lastly, it noted that the “only

facts relating to the alleged conspiracy pertain to events that
occurred
matter
claims.
motion

after
of

[Cook]

causation,

(J.A. 11.)
disposed

of

was

killed

provide

a

and

therefore

basis

for”

cannot,

the

as

a

Appellants’

The district court’s grant of the 12(b)(6)
all

counts

alleged

against

the

Appellants

and

BCPD

and

supervisory officers.
In

the

intervening

months

the

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
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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.
recognized

remaining

factual

disputes

in

the

The court
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

jurisdiction under 28 U.S.C. § 1291.
9

appeal,

and

we

have

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II.
The Appellants raise numerous arguments that can be boiled
down to four central issues, namely, whether the district court:
(1) erred in granting the motion to dismiss Counts I and III
because

the

allegations

in

the

amended

complaint

were

sufficiently pled; (2) abused its discretion in granting the
motion

to

quash

the

request

for

production

of

documents

by

relying on an improper basis for its decision or, alternatively,
by

misapplying

motion

to

it;

(3)

substitute

abused

its

Officers

discretion

Fried

and

in

Choi

denying
because

the
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
record,

we

reviewed

each

of

conclude

that

the

reversible error in this case.

the

parties’

district

arguments

court

did

not

and

the

commit

We address below those arguments

warranting further discussion and affirm the judgments of the
district court.

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A.

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Rule 12(b)(6) Dismissal of Counts I and III

The Appellants contend the district court erred in granting
the motion to dismiss Counts I and III — the §§ 1983 and 1985
claims

against

the

BCPD,

Commissioner

Bealefeld,

Bevilaqua — for failure to state a claim.

and

Colonel

They assert that the

district court improperly applied a heightened pleading standard
beyond

what

advance

is

their

required

under

argument,

the

federal

notice

Appellants

rely

pleading.
heavily

To

on

the

Supreme Court’s explanation of those principles in Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163 (1993), and this Court’s decision in Jordan by Jordan
v.

Jackson,

dismissal

15

was

sufficiently
evidence

F.3d

(4th

inappropriate

alleged

following

Commissioner

333

facts

Cir.
because

that,

discovery,

Bealefeld,

and

1994).
the

if

would

Colonel

They

claim

amended

proven
show

Bevilaqua

complaint

with

that

that

specific

the

could

BCPD,

be

held

liable under §§ 1983 and 1985 for the events surrounding Cook’s
death.
We

review

dismissal,

de

novo

“focus[ing]

a

only

district
on

the

court’s

legal

Rule

sufficiency

12(b)(6)
of

the

complaint,” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008),

and

“accepting

as

true

the

well-pled

facts

in

the

complaint and viewing them in the light most favorable to the
plaintiff.”

Brockington, 637 F.3d at 505.
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Federal

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Rule

of

Civil

Pg: 12 of 63

Procedure

8(a)(2)

states

that

a

pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

Curiously, the

Appellants make no attempt to demonstrate that it satisfied the
Supreme Court’s explanations of Rule 8(a)(2)’s requirements as
set

forth

in

Twombly

and

Iqbal,

and

which

were

grounds upon which the district court relied.
rely

on

pre-Twombly

Jordan.

While

and

Iqbal

Leatherman

cases

held

that

such
§

primary

Instead, they

as

1983

the

Leatherman
claims

are

and
not

subject to a heightened pleading standard and Jordan applied
that holding in this Circuit, claims brought in federal court
are also subject to the generally applicable standards set forth
in the Supreme Court’s entire Rule 8(a) jurisprudence, including
Twombly
later

and

Iqbal.

“decisions

As

require

we

have

more

previously

specificity

recognized,

from

federal civil cases than was heretofore the case.”

these

complaints

in

Robertson v.

Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012).
Pursuant to Twombly and Iqbal, a complaint will survive a
motion to dismiss only if it contains factual allegations in
addition to legal conclusions.

Factual allegations that are

simply “labels and conclusions, and a formulaic recitation of
the elements of a cause of action” are not sufficient.
550

U.S.

at

555.

In

addition,

the

complaint

must

Twombly,
contain

“enough facts to state a claim to relief that is plausible on
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its face.”

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Id. at 570.

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That is to say, the factual allegations

must “be enough to raise a right to relief above the speculative
level.”

Id.

at

555.

Instead,

the

allegations

must

be

sufficient to “permit the court to infer more than the mere
possibility of misconduct” based upon “its judicial experience
and common sense.”

Iqbal, 550 U.S. at 679.

For these reasons,

courts “need not accept the legal conclusions drawn from the
facts [alleged in a complaint], and [they] need not accept as
true

unwarranted

arguments.”

inferences,

unreasonable

conclusions,

or

Giarratano, 521 F.3d at 302 (internal quotation

marks omitted).
We agree with the district court that the amended complaint
does

not

satisfy

these

requirements.

The

amended

complaint

suffers from a number of infirmities with respect to the claims
against the BCPD.

Most strikingly, it repeatedly sets forth

legal conclusions masquerading as factual allegations.

Indeed,

at times, the amended complaint misstates what the law is with
respect to Monell and supervisory liability, thus pleading not
only legal conclusions as opposed to fact, but inaccurate legal
conclusions at that.
credit

those

portions

The district court appropriately did not
of

the

amended

complaint.

Just

as

troubling, the amended complaint parrots the language of various
legal theories without stating any facts to demonstrate that
type of conduct.

In so doing, the amended complaint “tenders
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naked assertions devoid of further factual enhancement,” Iqbal,
556

U.S.

at

678

(internal

quotation

marks,

alterations,

and

citation omitted), and is merely a “[t]hreadbare recital[] of
the elements of a cause of action, supported by mere conclusory
statements,” which are not sufficient to survive a motion to
dismiss.

Id. at 678 (citation omitted).

Lastly, where the

amended complaint alleges actual facts, those facts are either
irrelevant to establishing a viable § 1983 or 1985 claim, or,
where on point, do not “state[] a plausible claim for relief,”
id. at 679, because they do not “raise a right to relief above
the speculative level.”
With

respect

to

Twombly, 550 U.S. at 555.
Commissioner

Bevilaqua’s

liability

as

complaint’s

assertions

boil

down

Colonel

the

amended

contending

to

and

officers,

supervisory

Bealefeld

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

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liability.

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See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)

(stating the three elements to establish supervisory liability). 4
For the reasons set forth above, we conclude the district
court

did

not

err

in

granting

the

BCPD

and

supervisory

officials’ motion to dismiss the claims against them.

B.

Motion to Quash and Motion to Substitute

The Appellants next claim the district court abused its
discretion in granting the BCPD’s motion to quash a request for
production of documents and in denying a motion to substitute
Officers Fried and Choi. 5

See In re Grand Jury Subpoena, 646

F.3d 159, 164 (4th Cir. 2011) (stating standard of review for a

4

We also agree with the district court that even accepting
the scant factual allegations of a conspiracy as true, the
amended complaint simply does not set forth a viable cause of
action for a conspiracy to violate Cook’s rights by covering up
the circumstances of his death given that the alleged conspiracy
formed only after Cook died.
Nor did Cook set forth facts
sufficient to survive a motion to dismiss that would support the
conclusion that any such conspiracy was motivated by race.
Thus,
those
allegations
could
not
implicate
Cook’s
constitutional rights or set forth a basis for relief under §
1985 as a matter of law.
See Simmons v. Poe, 47 F.3d 1370,
1376-77 (4th Cir. 1995) (stating the elements of a cause of
action under § 1985(3)).
5
The “motion to substitute the names of Jared Fried and
Angela Choi for defendants John Does 1 and 2” sought to do much
more than simply substitute these named parties for John Does.
For this reason, it would more appropriately be termed a motion
to file a second amended complaint and join party defendants.
Nonetheless, the standard of review for each motion is the same;
for consistency, we refer to it as the “motion to substitute.”

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motion to quash); US Airline Pilots Ass’n v. Awappa, LLC, 615
F.3d 312, 320 (4th Cir. 2010) (stating standard of review for a
motion to amend a complaint).

1.
After

the

BCPD

Motion to Quash

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.
request set a compliance date of October 15. 6
The

BCPD

moved

to

quash

the

request

(J.A. 91-93.)

The

(J.A. 91-93.)
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.
also

indicated

it

disciplinary/personnel

would

“produce

related

non-privileged,

responsive

documents

in

It
nonits

possession, custody, or control that pertain specifically to the
facts and circumstances of the August 14, 2007 incident.”

6

(J.A.

Specifically, the request demanded that the BCPD
“produce[]
for
inspection
and
photocopying
the
documents
described below, at 10:00 a.m., Friday, October 15, 2010, at its
headquarters . . . .” (J.A. 89.)

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178 n.2.)
granted
satisfied

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Over the Appellants’ objections, the district court

the

motion

that

the

to

quash,

documents

stating

sought

by

that

it

[the

Appellants]

irrelevant to the claims that are now pending.

was

“fully
are

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
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matter

that

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parties

“may

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obtain

discovery

regarding

any

nonprivileged matter that is relevant to any party’s claim or
defense . . . .”

R. 26(b)(1).

Relevance is thus the foundation

for any request for production, regardless of the individual to
whom a request is made.

That the BCPD was no longer a party to

the case did not make relevance of the materials requested an
inappropriate factor for the court to consider.

See Misc. Dkt.

Matter 1 v. Misc. Dkt. Matter 2, 197 F.3d 922, 925 (8th Cir.
1999) (discussing factors to be considered in discovery against
third parties, including relevance).

Although Rule 45(c) sets

forth additional grounds on which a subpoena against a third
party may be quashed, taking into consideration facts peculiar
to their status as a non-party, those factors are co-extensive
with

the

general

rules

governing

all

discovery

that

are

set

forth in Rule 26. 7
District courts are afforded broad discretion with respect
to

discovery

specifically.
Appellants

generally,

and

motions

to

quash

subpoenas

The overwhelming majority of the materials the

sought

were

directed

7

at

matters

related

to

the

We further note that Rule 45(c)(3) requires courts to
quash a subpoena that “subjects a person to undue burden”
(45(c)(3)(A)(iv)). This ground encompasses situations where the
subpoena seeks information irrelevant to the case or that would
require a non-party to incur excessive expenditure of time or
money, factors on which the district court’s order expressly
relied.

18

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dismissed

Filed: 08/24/2012

claims

against

the

Pg: 19 of 63

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

claims against Officers Howard and Green.
assert

that

these

materials

may

have

correlation

to

the

While the Appellants
led

to

discovery

of

admissible evidence, they present no intelligible explanation of
how that is so, nor can we detect any; the requests have every
indicia of the quintessential fishing expedition.
The materials requested that related to Cook’s death are
more problematic given that they at least had some connection to
the remaining claims in the case.

However, it is not our task

to substitute our judgment for that of the district court, but
rather to assess “whether the [district] court’s exercise of
discretion, considering the law and the facts, was arbitrary or
capricious.”

United States v. Mason, 52 F.3d 1286, 1289 (4th

Cir. 1995) (citation omitted).

As we have previously stated:

The purpose of standards of review is to focus
reviewing courts upon their proper role when passing
on the conduct of other decisionmakers.
Standards of
review are thus an elemental expression of judicial
restraint, which, in their deferential varieties
safeguard
the
superior
vantage
points
of
those
entrusted with primary decisional responsibility. . .
. At its immovable core, the abuse of discretion
standard requires a reviewing court to show enough
deference to a primary decisionmaker’s judgment that
the court does not reverse merely because it would
have come to a different result in the first instance.

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Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,
320-21 (4th Cir. 2008).
Our review necessarily focuses on the information available
to the district court at the time of its decision.

The totality

of those circumstances leads us to conclude that the court did
not act arbitrarily or capriciously in granting the motion to
quash.

As

detailed

above,

the

Appellants’

request

for

production of documents sought an inordinate array of documents
from a non-party in comparison to a limited number that may have
been

responsive

and

relevant

to

the

remaining

claims.

In

opposing the motion to quash, the Appellants did not request a
modification of the request for production, but persisted at
length

in

necessary
quash

their
to

assertion

their

conceded

the

case.

that

all

of

Furthermore,

discoverability

of

the
the
a

documents

BCPD’s
small

were

motion
number

to
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.
a course.

Nor did the BCPD recommend such

The district court decided the matter based on the

positions taken and arguments advanced by each party.
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course is neither arbitrary or capricious.

That the district

court could also have acted within its discretion by undertaking
a different course of action — i.e., sua sponte modification of
the request rather than outright quashing — does not make its
selected

course

an

abuse

of

discretion.

See

Regan-Touhy

v.

Walgreen Co., 526 F.3d 641, 653 (10th Cir. 2008) (“[W]e cannot
see how the district court abused its considerable discretion in
its

resolution

of

the

parties’

discovery

disputes

given

the

nature of the requests at issue and the state of the record
before the court at the time.”).
conclude

that

the

district

On this record, we cannot

court

acted

arbitrarily

or

capriciously in granting the motion to quash.

2.

Motion to Substitute

On November 30, the Appellants moved to substitute Officers
Fried

and

Choi

as

party

defendants

“John

Does

1

and

2.”

Attached to the motion was a proposed second amended complaint,
which

contained

the

desired

“substitutions.”

The

proposed

second amended complaint identifies Officers Fried and Choi as
the BCPD officers who initially approached and pursued Cook; it
alleges that Officer Green thereafter joined the foot pursuit,
and that Officers Fried and Green took turns hitting the fence
prior to Cook’s fall.

And it alleges that Officers Fried and

Choi were “high-fiving and laughing” after Cook’s death, and
21

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that

Doc: 48

Officer

Filed: 08/24/2012

Bradley

Officer Fried.

engaged

Pg: 22 of 63

in

a

physical

altercation

with

In sum, the Appellants now alleged that Officer

Green participated in some — but not as much — of the conduct
allegedly preceding Cook’s death, while Officer Howard was no
longer alleged to have been present during any of those events.
The

only

remaining

claim

against

Officer

Howard

was

that

he

participated in a post-death conspiracy to cover up the other
BCPD officers’ misconduct by filing a false report. 8
The district court denied the motion to substitute.

At the

outset, the court noted that the motion was filed seven weeks
after the October 12 deadline set in the scheduling order for
amending

the

pleadings

and

joining

parties,

and

under

the

language of the scheduling order, could only be granted upon a
showing

of

good

cause.

The

court

rejected

the

Appellants’

contention that they had demonstrated good cause based on its
determination that the Appellants “ha[d] no one but themselves
to blame for the untimeliness” in light of the length of time
between the August 14, 2007 incident and the October 12, 2010
amendment deadline and long periods of inaction during which

8

Based on these changed factual allegations, the proposed
second amended complaint adds Officers Fried and Choi to the
Count II §§ 1983 and 1985 causes of action based on deprivations
of Fourth and Fourteenth Amendment rights.
It also adds
Officers Fried and Choi to and removes Officer Howard from the
state law claims asserted in Counts IV and V.

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they

Doc: 48

could

have

Filed: 08/24/2012

learned

the

Pg: 23 of 63

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

discretion in denying the motion to substitute.

abused

its

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.
factual

determination

They also challenge the district court’s
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
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“good cause” to modify the scheduling order deadlines, before
also satisfying the Rule 15(a)(2) standard for amendment.

See

Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298-99 (4th Cir.
2008); see also O’Connell v. Hyatt Hotels of Puerto Rico, 357
F.3d 152, 155 (1st Cir. 2004) (describing the interplay between
these rules).

Even apart from the federal rules, the scheduling

order in this case specifically stated that “good cause” would
be

required

to

amend

October 12 deadline.

the

pleadings

at

any

point

after

the

The district court thus appropriately held

the Appellants to the “good cause” standard.
We also conclude that the district court did not abuse its
discretion in finding that the Appellants had not demonstrated
“good

cause”

for

the

untimely

motion

to

substitute.

“Good

cause” requires “the party seeking relief [to] show that the
deadlines

cannot

reasonably

be

met

despite

the

party’s

diligence,” and whatever other factors are also considered, “the
good-cause

standard

will

not

be

satisfied

if

the

[district]

court concludes that the party seeking relief (or that party’s
attorney)
schedule.”

has

not

acted

diligently

in

compliance

with

the

See 6A Charles Alan Wright, Arthur R. Miller, and

Mary Kay Kane, Federal Practice and Procedure Civ. 3d § 1522.2
(3d ed. 2010) (collecting cases); see also 3 Moore’s Federal
Practice § 15.14[1][b], at 16-72 (Matthew Bender 3d ed. 2010)
(“[A]lthough undoubtedly there are differences of views among
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district

Filed: 08/24/2012

judges

about

how

Pg: 25 of 63

compelling

a

showing

must

be

to

justify extending the deadlines set in scheduling orders, it
seems clear that the factor on which courts are most likely to
focus when making this determination is the relative diligence
of the lawyer or lawyers who seek the change.”).

Each of the

Appellants’ arguments as to why good cause exists rings hollow
in light of the record before us.
basis

from

which

the

district

That record provides an ample

court

could

conclude

that

the

Appellants had not been diligent in pursuing the identities of
additional BCPD officers they believed to be part of the alleged
events surrounding Cook’s death.
Contrary to the Appellants’ assertion and the conclusion
reached by the dissenting opinion, the district court’s earlier
grant

of

the

motion

to

quash

the

request

for

production

of

documents did not directly bring about the Appellants’ inability
to timely acquire information about Officers Fried and Choi’s
alleged presence and participation in the events of August 14.
This

is

so,

in

part,

because

the

request

for

production

intentionally listed a compliance date of October 15, three days
past
shows

the
the

October

12

Appellants

amendment
were

deadline.

aware

of

the

The

record

proposed

deadline when they set the October 15 return date.

clearly

October

12

Yet during

the scheduling order conference, the Appellants did not request
a later amendment deadline in order to allow time to review any
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materials

Filed: 08/24/2012

they

production.

received

in

Pg: 26 of 63

response

to

the

request

for

Thus, even if the motion to quash had been denied

in full or in part, the Appellants still would not have required
the BCPD to produce the requested materials before the amendment
deadline. 9
Moreover, at no time after the motion to quash had been
granted did the Appellants make a timely motion to amend the
scheduling order deadline. 10
order’s

clear

directive

This is so despite the scheduling

that

deadlines

would

be

strictly

enforced and altered only if “good cause” had been shown.

The

Appellants have offered absolutely no explanation for why they
did

not

file

a

timely

motion

to

9

amend

the

scheduling

order

The district court did not rely on the length of time
between the amendment deadline and the filing of the motion to
substitute (a seven-week gap) as a factor in determining whether
the Appellants had demonstrated good cause.
Instead, the
district court relied on the significant amount of time between
the August 14, 2007 incident and the filing of the motion, as
well as the Appellants’ failure to diligently pursue the matter
between the February 2010 filing of the case and the filing of
the motion to substitute.
The district court’s stated reasons
for holding the Appellants responsible for the delay and finding
they lacked diligence would not appear to have altered
significantly had the district court received an untimely, but
less untimely, motion to substitute and amend in the event the
motion to quash had been denied. See also infra at pp. 33-35.
10
Although the Appellants eventually moved to amend the
scheduling order deadline, they did so after moving to
substitute Officers Fried and Choi, and only once the issue was
raised in Officers Howard and Greens’ response to that motion.
The district court eventually denied that motion for the same
grounds it denied the motion to substitute.

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deadline once it became clear that sufficient discovery would
not be completed in time to meet the October 12 deadline. 11
Lastly, the record shows an overall lack of diligence on
the

Appellants’

part,

which

the

district

relied on in making its decision.

court

appropriately

As the district court noted,

the Appellants did not file this case until approximately twoand-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

underlying the Appellants’ claims.
period

between

filing

suit

and

of

the

events

For the almost-seven-month

first

seeking

a

request

for

production, the Appellants made no effort whatsoever to pursue
limited discovery to identify any other BCPD officers who may
have participated in any of the alleged events. 12

11

When expressly asked about this point during oral
argument, the Appellants’ attorney noted only that he did not
know at the time the scheduling order deadlines were set whether
he would need more time.
He offered no explanation for his
failure to seek a timely modification in light of subsequent
events and the approach of the amendment deadline.
12

Contrary to the Appellants’ protestations that they could
not undertake discovery until after the scheduling order was
filed, the local rules permit discovery at an earlier time as
“ordered by the court or agreed upon by the parties.”
Local
Rule 104.4.
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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.
that

at

the

identities
relevant

time

of

to

they

filed

at

least

five

the

events

of

suit,

the

individuals

August

14:

The record shows

Appellants
who

BCPD

had

knew

the

information

Officers

Howard,

Green, and Bradley; BCPD supervisory officer Colonel Bevilaqua;
and eyewitness Shamika Summers. 13
Appellants’

lack

of

diligence

These facts underscore the
throughout

the

proceedings

in

identifying “known unknown” individuals who might be part of
their case.

As the Eleventh Circuit has stated:

The lack of diligence that precludes a finding of good
cause is not limited to a plaintiff who has full
knowledge of the information with which it seeks to
13

The Appellants had obtained a copy of Officer Howard’s
accident report as early as October 2007.
That report
identifies Colonel Bevilaqua as the highest ranking officer
present at the scene of the investigation into Cook’s death. It
identifies Officer Green as the police officer who initiated the
foot pursuit with Cook and provides Officer Green’s telephone
number and address.
It also identifies Officer Howard as the
“reporting” officer and includes his address and telephone
number.
Although it is not clear from the record when the
Appellants
first
learned
of
eyewitness
Shamika
Summers’
knowledge of the incident, the Appellants’ private investigator
took her statement in November 2009, also well before filing
suit. Her statement includes a description of the BCPD Officer
she alleged shook the fence. Although she did not identify him
by name at that time, in her deposition taken after the
expiration of the amendment deadline, she identified Officer
Fried as that officer. This information unequivocally shows the
Appellants had notice of individuals who would have further
details of the incident.
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amend its complaint before the deadline passes.
That
lack of diligence can include a plaintiff’s failure to
seek the information it needs to determine whether an
amendment is in order.
See S. Grouts & Mortars v. 3M Co., 575 F.3d 1235, 1241 n.3 (11th
Cir. 2009).
Despite

the

unidentified

Appellants

individuals

knowing

involved

in

there

the

events

were
they

as-yetalleged

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

complaint.

The

them

to

Appellants,

file
and

a
to

timely
some

amendment

degree

the

of

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

significance of the amendments they sought to make.
not,

however,

bear

on

the

lack

of

diligence

in

to

the

It does
the

first

instance.
It is true that Officer Howard’s accident report appears to
have mistakenly named Officer Green as the officer involved in
the initial foot pursuit.

However, nothing in Officer Howard’s

report suggests that the Appellants were correct in asserting
that Officer Howard had been present for or a participant in any

29

Appeal: 11-1601

of

the

Doc: 48

events

Filed: 08/24/2012

leading

up

to

Pg: 30 of 63

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
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14,

Doc: 48

and

Filed: 08/24/2012

that

he

visited

her

Pg: 31 of 63

shortly

after

Cook’s

death

to

describe the events of that day to her, including the alleged
participation of Officer Fried. 14
and

Green

present
And,

as

both

on

identified

August

discussed

14

in

In addition, Officers Howard

Officers
their

elsewhere

Fried

responses

in

this

and
to

Choi

as

being

interrogatories.

opinion,

Officer

Howard

denied being present at the scene until after Cook’s death; had
the

Appellants

questioned

Officer

Howard

for

the

purpose

of

ascertaining his knowledge of other individuals’ roles in the
events leading up to Cook’s death, they would have necessarily
discovered why he could not answer those questions and could
have

timely

identity

of

pursued
the

additional

officers

who

information
were

actually

to

determine

involved

in

the
the

pursuit as well.
The Appellants’ failure to seek information from any one of
these witnesses at an earlier date meant that they could not
pursue any leads those witnesses provided in time to make a

14

The uncontested evidence shows that Hammond knew Officer
Bradley had additional information about who may have been
present and involved in the August 14 incident.
As such, the
Appellants could have deposed him earlier in an effort to
identify additional participants to the events.
Had they done
so, Officer Bradley could have led them to Officer Fried and, in
turn, to Officer Choi. Yet the Appellants elected not to depose
Officer Bradley until November 30, well after the October 12
deadline for amending the pleadings, despite being privy to this
opportunity at least three years earlier.

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timely amendment.

Pg: 32 of 63

In view of these readily apparent avenues

available to the Appellants and yet left entirely unexplored,
they have merely evinced an earlier desire to know something and
have not demonstrated they acted—with diligence or otherwise—in
timely pursuing that knowledge.

See Millennium Partners, L.P.

v. Colmar Storage, LLC, 494 F.3d 1293, 1299 (11th Cir. 2007)
(holding
notice

that

of

good

cause

information

did

that,

not

exist

“with

where

some

movant

was

investigation,”

on

would

have led to timely discovery of the basis for the motion to
amend);

Trustmark

Ins.

Co.

v.

General

&

Cologne

Life

Re

of

America, 424 F.3d 542, 553 (7th Cir. 2005) (same). 15
The partial dissent focuses on a perceived “domino effect”
that the grant of the motion to quash had on the timing of the
motion to substitute and the district court’s analysis of the
latter

motion.

received
amendment

It

salient

speculates

information

deadline,

or

at

that
from

the

the
the

very

substitute could have been less untimely.

Appellants
BCPD

least

may

prior
any

have

to

the

motion

to

It is pure conjecture

to suggest that the Appellants may have acquired any information
sought

in

the

request

for

production

15

prior

to

October

15,

We reject the Appellants’ assertion that the BCPD
intentionally concealed the identities of Officers Fried and
Choi until after the amendment deadline.
There is simply no
evidence in the record to support that allegation; it is only
rank speculation on the part of the Appellants.
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particularly in light of language of the request itself.

But

even

its

assuming,

arguendo,

that

the

district

court

abused

discretion with respect to the motion to quash, that assumption
would

only

produce

mean

the

that

requested

the

BCPD

would

have

documents—including

been

required

Officers

Fried

to
and

Choi’s police reports—by October 15, the delinquent deadline the
Appellants knowingly set.
documents

would

still

Any motion to amend based on those

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
case.

and

While

persistent

the

lack

dissent

of

theorizes

diligence
on

the

throughout

district

the

court’s

“general frustration . . . with various other delays” in the
case,

post

at

60

n.22,

the

district

court’s

reasoning

is

precisely the appropriate analysis to determine the existence of
“good

cause.”

excuses

That

compliance

is,

in

considering

whether

with

a

scheduling

order

33

“good

cause”

deadline,

the

Appeal: 11-1601

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district
diligent,

Filed: 08/24/2012

court

must

though

examine

Pg: 34 of 63

whether

unsuccessful,

in

the

movant

attempting

to

had

been

acquire

the

information that would have formed the basis of a timely motion
to

amend.

To

be

sure,

the

movant’s

conduct

in

the

period

between the deadline and the untimely motion is also relevant to
showing continued diligence in acquiring the information.

But

the

the

court’s

focus

is

appropriately

and

necessarily

on

movant’s overall conduct of the case, and in particular what
action led to missing the scheduling order’s deadline.

See,

e.g., Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 348
(5th Cir. 2008) (“‘Good cause’ . . . requires a party to show
that

the

diligence

deadlines
of

the

cannot

party

reasonably

needing

the

be

met

despite

extension.”)

the

(internal

quotation marks omitted); Leary v. Daeschner, 349 F.3d 888, 907
(6th Cir. 2003) (holding that to show “good cause” a movant must
demonstrate “that despite their diligence they could not meet
the original deadline”); Sosa v. Airprint Systems, Inc., 133
F.3d 1417, 1419 (11th Cir. 1998) (per curiam) (holding that good
cause did not exist where counsel waited months after filing of
the pleadings to propound written discovery and did not take
oral depositions of known key individuals to their claims until
after the deadline for amending the complaint).
As noted, the Appellants alleged from the outset of the
case that as-yet-unknown BCPD officers were present during and
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participated in the events they asserted to have caused Cook’s
death.

As of late 2007, the Appellants knew the identities of

several witnesses who could have provided information about the
events

of

August

14

that

could

have

led

them

to

learn

the

identities and alleged roles of Officers Fried and Choi.

Yet

they completely failed to pursue any limited or otherwise timely
discovery

to

obtain

information

about

the

“known

unknown”

individuals they believed could be potential defendants in their
case.
for

They also knowingly selected a return date on the request

production

that

was

after

the

amendment

deadline.

The

Appellants never asked for that deadline to be altered prior to
its passing and offer no explanation for their failure to do so.
None of these factors have anything to do with the district
court’s earlier grant of the motion to quash, which, had it been
denied

in

full

or

part,

at

most

would

have

allowed

Appellants to file a less untimely motion to substitute.

the
Every

other factor—and significantly, every factor the district court
relied on, and every factor relevant to showing diligence in
meeting the October 12 deadline—would be unaltered.
reason,

we

conclude

that

the

district

court’s

For this

decision

with

respect to the motion to quash did not have a harmful “domino
effect”

on

the

events

surrounding

substitute.

35

the

Appellants’

motion

to

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In

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addition

supporting

the

to

all

district

of

Pg: 36 of 63

the

court’s

reasons

decision,

set
we

forth

are

above

also

ever

mindful that our standard of review gives the district court
great

deference,

hurdle.
court

even

if

it

is

not

always

an

insurmountable

Having conducted that review, we conclude the district

did

not

abuse

its

discretion

in

determining

that

the

Appellants’ repeated lack of diligence precluded a finding of
good cause to excuse the untimely motion to substitute.

Our

review of the totality of the events surrounding both the grant
of

the

motion

to

quash

and

the

denial

of

the

motion

to

substitute leads us to hold that the district court did not
abuse its discretion in ruling on either motion.

C.

Claims Against Officers Howard and Green

When the dust settled from the earlier motions and orders
in

this

judgment

case,

Officers

as

all

to

claims

district court granted.
summary
issues

judgment
of

was

material

Howard

Green

remaining

moved

against

for

them,

summary

which

the

The Appellants contend the award of

improper

fact,

and

because

which

if

there

resolved

remained
in

their

genuine
favor,

presented sufficient “evidence from which a jury could find that
police officers Howard and Green committed act[s] that caused
the deprivation of” Cook’s and the Appellants’ rights under the

36

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Fourth

Doc: 48

and

Filed: 08/24/2012

Fourteenth

Pg: 37 of 63

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.
Harris, 550 U.S. 372, 380 (2007).

Scott v.

“Where the record taken as a

whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.”
DeStefano,

557

U.S.

557,

___,

129

S.

Ct.

2658,

Ricci v.

2677

(2009)

(quotation marks and citation omitted).

1.

Claims Regarding Events Leading Up To Cook’s Death

The Appellants contend there is an unresolved question of
fact as to Officer Green’s location during the events of August
14.

Officer

testified

during

his

the

“highway

level”

after

additional

evidence

in

arrived only
there

is

testimony.

Green
at

the

deposition

record

Cook’s
to

that

death,

support

he
and

this

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
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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.”
Durham

Airport

News & Observer Publ’g Co. v. Raleigh-

Auth.,

597

F.3d

570,

576

(4th

Cir.

2010)

(citation omitted); Hawkspeare Shipping Co. v. Intamex, S.A.,
330 F.3d 225, 232 (4th Cir. 2003) (“There is a material dispute
of fact when the fact’s existence or non-existence could lead a
jury

to

different

outcomes.”).

Under

this

standard,

the

Appellants must present evidence that Officer Green engaged in
conduct

that

violated

rights,

wherever

he

Cook’s
was

Fourth

and

Fourteenth

As

explained

located.

Amendment
presently,

however, even if we assume he participated in the foot pursuit
and

was

present

at

the

fence

prior

to

Cook’s

death,

the

Appellants have failed to create a genuine issue of material
fact with respect to what Officer Green did.
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The only evidence in the record that the Appellants offer
to

establish

testimony

Officer

and

Green’s

Officer

conduct

Howard’s

is

accident

Summers’
report.

deposition
The

report

simply states that after Cook leapt over the fence, he “lost his
hand-hold before Officer Green could get to him, and Cook fell
the

70

feet

to

the

concrete

roadway

below.”

(J.A.

972.)

Summers, meanwhile, stated that she observed Caucasian police
officers shaking the fence, and that the one African-American
BCPD officer present at the scene was not shaking the fence, but
was trying to coax Cook to safety before he fell.

Like the

accident report, Summers’ deposition statement does not create a
genuine issue of material fact as to Officer Green’s conduct.
Even if the Appellants were able to establish that Officer Green
was

present

at

the

fence

and

was

the

African-American

BCPD

officer Summers saw there, the Appellants have not created a
genuine issue of material fact with regard to what he did there.
Accordingly, the district court did not err in deciding that the
Appellants failed to raise any genuine issue of material fact
with regard to their claims against Officer Green as a result of
the question about his location during the events in question.
Next, the Appellants contend that the district court should
not have granted summary judgment with respect to their claim
based on alleged violations of Cook’s Fourth Amendment rights—
that Cook was unreasonably seized on August 14.
39

Specifically,

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they point to: (1) the Fourth Amendment’s protection “against
arrests

without

excessive

probable

force

in

cause,

making

[and]

arrests

against

and

the

detentions

use
that

of
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
either

force

during

violation.

As

that
a

seizure,

result,

and

they

yet

failed

maintain

that

to

stop

summary

judgment on their Fourth Amendment claim was improper. 16

16

The Appellants initially alleged a Fourth Amendment claim
against Officer Howard as well. It appears they abandoned that
claim in light of their acceptance of undisputed evidence
produced during discovery that showed Officer Howard was not
present until arriving at the highway level after Cook’s death.
Although parts of the opening brief continue to allege that
Officer Howard was present at the fence, it appears that
allegation is limited to a recitation of the facts for purposes
of the Rule 12(b)(6) motion.
There is a difference, however,
between viewing the facts alleged in the amended complaint as
true for purposes of our review of the Rule 12(b)(6) motion and
improperly representing facts to the Court that counsel now
knows to be false.
Counsel is cautioned not to engage in such
conduct in any future submissions to this Court. In any event,
the Appellants have abandoned a Fourth Amendment-based claim
(Continued)
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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

a

not

implicated

every

time

police

individual to ask a few questions. 17

officer

approaches

an

Florida v. Bostick, 501

against Officer Howard, and even if they had not, such a claim
would fail based on the record before us.
17
The Appellants repeatedly refer to the BCPD officers’
initial approach and pursuit of Cook as being unlawful due to a
lack of probable cause. They are wrong as to both the law and
the facts. During discovery, several points came to light which
are no longer disputed by any evidence (despite the Appellants’
bald assertions to the contrary), and which are relevant to
understanding the initial encounter between Cook and the BCPD
officers.
The officers observed Cook walking in such a manner
that suggested he was carrying a concealed weapon at his waist.
When they approached him in order to conduct a field interview,
Cook fled and the officers pursued him.
A firearm was later
retrieved from Cook’s body.
While we undertake the basic Fourth Amendment “seizure”
analysis employed by the district court, we also note that under
the Supreme Court’s precedent regarding Terry stops and in
particular its decision in Illinois v. Wardlow, 528 U.S. 119
(Continued)
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U.S. 429, 434 (1991); Schultz v. Braga, 455 F.3d 470, 480 (4th
Cir. 2006).

Rather, there must be a “seizure,” that is, a

situation where, “in view of the totality of the circumstances .
.

.

,

a

reasonable

person

would

otherwise terminate the encounter.”
282 F.3d 302, 309 (4th Cir. 2002).

not

feel

free

to

leave

or

United States v. Weaver,
A seizure requires “either

physical force . . . or, where that is absent, submission to the
assertion of authority.”

California v. Hodari D., 499 U.S. 621,

626 (1991) (emphasis omitted).
The facts of this case, viewed in the light most favorable
to

the

Appellants,

could

not

establish

that

a

“seizure”

by

either physical force or submission to an assertion of authority
occurred.

A seizure by physical force occurs when there is “a

governmental termination of movement through means intentionally
applied.”
(emphasis

Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989)
omitted)

(analyzing

whether

a

seizure

by

physical

force occurred when a fleeing subject ran into and was killed on
impact with a police-created roadblock set in place to stop the
subject); Hodari D., 499 U.S. at 624 (“From the time of the

(2000), the BCPD officers were not required to have probable
cause simply to approach Cook initially so long as they had a
“reasonable,
articulable
suspicion”
of
criminal
activity.
Moreover, even absent a reasonable, articulable suspicion, once
Cook engaged in “unprovoked flight upon noticing the police,”
the police could lawfully pursue him in order “to briefly
investigate further.” see id. at 123-26.
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founding to the present, the word ‘seizure’ has meant a taking
possession.

For most purposes at common law, the word connoted

not merely grasping, or applying physical force to, the animate
or inanimate object in question, but actually bringing it within
physical

control.”)

(holding

no

(internal

“seizure”

citations

occurred

until

omitted);
Hodari

id.

was

at

629

physically

apprehended, i.e., tackled to the ground to stop his flight);
see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44
(1998).

Cook fled from BCPD officers as they approached him;

there is no evidence in the record that they ever made physical
contact with Cook, nor is there evidence that they terminated
his “freedom of movement through means intentionally applied.”
Contrast Brower,

489

U.S.

at

597-98

(holding

that

where

the

police roadblock was intended to stop Brower by physical impact
and did so, a seizure occurred).
When an officer acts by a show of authority rather than
physical restraint, “the individual must actually submit to that
authority”

for

there

to

be

a

“seizure.”

United

States

v.

Beauchamp, 659 F.3d 560, 566 (6th Cir. 2011) (citing Brendlin v.
California, 551 U.S. 249, 254 (2007)).

Even assuming that the

BCPD officers’ approach and pursuit of Cook constituted “show of
authority,”

Cook’s

flight

nonetheless

demonstrates

submission such that a “seizure” did not occur.
499

U.S.

at

629

(assuming

that
43

a

police

a

lack

of

See Hodari D.,

officer’s

pursuit

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constitutes a “show of authority,” a defendant’s non-compliance
meant there was no seizure during the course of the pursuit);
see also United States v. Griffin, 652 F.3d 793, 800-01 (7th
Cir. 2011) (“[A] seizure by show of authority does not occur
unless and until the suspect submits.”) (emphasis in original).
At no time did Cook submit to a show of authority.
The

uncontroverted

record

evidence

thus

supports

the

district court’s determination that Cook had not been “seized”
within the meaning of the Fourth Amendment.

Accordingly, the

court did not err in granting Officer Green summary judgment on
the Fourth Amendment claim.
The Appellants next advance the argument that the district
court erred in granting summary judgment to Officer Green on
their claim that his conduct violated Cook’s substantive due
process rights.

A § 1983 claim of this sort (based on executive

branch

is

action)

substantive
action.

due

more

process

difficult
violations

to

prove

resulting

than

from

alleging

legislative

“[T]he Supreme Court has . . . marked out executive

conduct

wrong

conduct

enough

that

‘shocks

to

register

the

on

a

due

conscience,’

process

and

scale

nothing

as

less.”

Waybright v. Frederick County, Maryland, 528 F.3d 199, 205 (4th
Cir. 2008) (quoting Lewis, 523 U.S. at 850).

Negligence is, by

definition,

hurdle,

something

insufficient
less

than

to

satisfy

intentional
44

this

conduct

may,

in

although
special

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circumstances, be sufficient. 18

Pg: 45 of 63

Id.

The Supreme Court has thus

instructed:
[I]n a due process challenge to executive action, the
threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary
conscience.
That judgment may be informed by a
history of liberty protection, but it necessarily
reflects an understanding of traditional executive
behavior,
of
contemporary
practice,
and
of
the
standards of blame generally applied to them. Only if
the necessary condition of egregious behavior were
satisfied would there be a possibility of recognizing
a substantive due process right to be free of such
executive action . . . .
Lewis, 523 U.S. at 847 n.8.
We conclude that the Appellants’ allegations with regard to
Officer Green — the only BCPD officer who is a party defendant
and who is alleged to have been at the scene prior to Cook’s
death — do not rise to the requisite level to survive summary
judgment.

Simply put, even assuming that Officer Green pursued

Cook on foot and was present at the fence, there is nothing
18

We note that the Appellants rely on Parratt v. Taylor,
451 U.S. 527 (1981), to contend that negligence is sufficient to
establish liability under § 1983.
In so doing, they overlook
the Supreme Court’s decision in Daniels v. Williams, 474 U.S.
327 (1986), which overruled Parratt in relevant part, by holding
that Fourteenth Amendment due process violations “must flow from
conduct amounting to more than mere negligence.”
Temkin v.
Frederick Cnty. Comm’rs, 945 F.2d 716, 719 (4th Cir. 1991).
Counsel’s reliance on subsequently overruled case law is
not isolated to this one instance. Quite apart from the lack of
merit of the Appellants’ claims, we once again caution counsel
that such advocacy renders a disservice to his clients and
should not be repeated.

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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

was

that

Officer

Green

never

shook

the

fence,

but

“trying to talk [Cook] into coming around . . . and get down,”
and to coax him to a safe position.
617-19, 639, 679.)
African-American
“crying.”

(J.A. 581, 586-88, 614,

She further stated that after Cook fell, the

officer

“looked

dazed

(J.A. 585, 590, 654-55.)

and

stunned,”

and

was

When asked whether Summers

saw the African-American officer “do anything to cause injury to
[Cook,]” or to “cause [Cook] to fall,” Summers replied, “No,
sir,” “I didn’t hear him call him names and I didn’t see him
pushing the fence.”

(J.A. 655, 656.)

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Even in the light most favorable to the Appellants (i.e.,
accepting

that

Officer

officer

Summers

clearly

states

Green

observed
that

was

the

near

the

fence),

officer

did

African-American

not

Summers’

BCPD

testimony

participate

in

any

actionable conduct.

Nor does her statement allow an inference

that

Green

simply

stood

violate

Cook’s

due

Officer

officers

to

by

and

process

allowed

rights:

the

other

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

process claim.
Cir.

2001)

of

culpability

required

for

a

viable

due

See Patten v. Nichols, 274 F.3d 829, 834 (4th

(“While

it

is

clear

that

intentionally

harmful

conduct may constitute a violation of the Fourteenth Amendment,
it is equally clear that negligence alone does not amount to a
constitutional
unforeseen
judgment,

violation.”);

circumstances
even

Lewis,

demand

precipitate

[a

523

U.S.

police]

recklessness

at

853

officer’s

fails

to

(“[W]hen
instant

inch

close

enough to harmful purpose to spark the shock that implicates the
large concerns of the governors and the governed.”) (internal
quotation

marks

omitted);

id.

at

840-55

different degrees of culpability required).
47

(describing

the

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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

specific

allegations;

evidence

to

instead,

support

they

their

must

claims.

have
See

Defenders of Wildlife, 504 U.S. 555, 561 (1992).

set

forth

Lujan

v.

The facts they

have established, even when viewed in the light most favorable
to them, do not set forth a viable substantive due process claim
against Officer Green.

His conduct cannot, as a matter of law,

be said to “shock the conscience,” or to be so egregious or
outrageous

so

as

to

state

a

claim

for

a

constitutional

violation.

For these reasons, we hold that the district court

did not err in awarding summary judgment to Officer Green.

2.

Claims Based on a Conspiracy to Cover-Up Cook’s Death

The Appellants also contend that the district court erred
in

granting

substantive

summary
due

judgment

process

claims.

to

Officer
As

Howard

already

on

their

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
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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.
Cir.

As we recognized in Shaw v. Stroud, 13 F.3d 791 (4th

1994),

“the

Supreme

Court

has

never

extended

the

constitutionally protected liberty interest incorporated by the
Fourteenth

Amendment

due

process

clause

to

encompass

deprivations resulting from governmental actions affecting the
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family only incidentally.”

Pg: 50 of 63

Id. at 805.

We declined to sanction

such a claim in Shaw, and we adhere to that precedent.

See id.

Similarly, the Appellants failed to advance a viable claim
based on a conspiracy to deny access to courts.

Such a claim

required proof that Officer Howard and others “acted jointly in
concert and that some overt act was done in furtherance of the
conspiracy which resulted in [the] Appellants’ deprivation of a
constitutional
courts).”

right

(in

this

case

the

right

to

access

to

Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th

Cir. 1996).

The evidence does not disclose any communication—

direct or circumstantial—that Officer Howard intentionally filed
a false accident report or otherwise attempted to cover up the
events of August 14, let alone that he conspired with anyone to
do so.
merely

“The problem with [the Appellants’] evidence is not
that

each

interpretation.

act
Rather,

alleged
the

is

problem

capable
is

of

that

an

innocent

[the]

evidence

amounts to nothing more than rank speculation and conjecture.”
Id. at 422 (rejecting access to courts conspiracy claim).
At

bottom,

the

Appellants’

because

Officer

Howard’s

report

argument

appears

contradicts

their

to

be

that

speculation

about what happened and thus impedes their ability to prove it
in

court,

denied

he

their

had

to

right

have
to

participated

access

to

in

courts.

a

conspiracy
This

that

argument

necessarily fails not only for the problems already identified,
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but also for the reason identified by the district court: the
Appellants

have

failed

to

identify

with

any

specificity

how

Officer Howard’s purported conduct prevented them from seeking
judicial redress.

See Christopher v. Harbury, 536 U.S. 403,

414-16 (2002); see also Swekel v. City of River Route, 119 F.3d
1259, 1263-64 (6th Cir. 1997) (access to courts claims require
proof “that the defendants’ actions foreclosed [the Appellants]
from filing suit in . . . court or rendered ineffective any . .
. remedy [they] previously may have had”).
produce

evidence

of

Officer

Howard’s

Having failed to

participation

in

a

conspiracy to cover up the events surrounding Cook’s death or to
plead with sufficient particularity how such a conspiracy would
have implicated their right to access courts, this substantive
due process claim also fails. 19

20

19

In their opening brief, the Appellants make a passing
reference to Officer Green’s purported participation “in the
cover-up of the unlawful actions of all the police officers,”
such that he, too, is liable for participating in a conspiracy
to violate Cook’s constitutional rights.
(Opening Br. 59.).
The district court found that the Appellants had not pled a
conspiracy claim against Officer Green in their amended
complaint, but had raised such a claim for the first time in
their opposition to summary judgment. For that reason, it held
the Appellants had not satisfied “the basic notice pleading
standards” required in Federal Rule of Civil Procedure 8(a).
We agree with the district court.
Federal pleading
requires that a complaint give defendants “fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).
Even under Rule 8’s
liberal pleading requirements, no reading of the amended
complaint
could
conclude
that
it
contains
a
cognizable
(Continued)
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For the aforementioned reasons, the district court did not
err in granting summary judgment to Officers Howard and Green as
to all of the claims the Appellants asserted against them.

III.
For the foregoing reasons, we affirm the judgments of the
district court.
AFFIRMED

conspiracy claim against Officer Green.
Accordingly,
district court correctly held that this claim was barred.
Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 254
Cir.
2005)
(“[N]otice
pleading
requires
generosity
interpreting a plaintiff’s complaint.
But generosity is
fantasy.”) (internal quotation marks and citation omitted).
20

the
See
(4th
in
not

The Appellants also challenge the district court’s grant
of summary judgment with respect to Counts IV and V, their state
law claims. We have reviewed the parties’ arguments and find no
reversible error in the district court’s determination that
those claims were precluded due to the Appellants’ failure to
provide the requisite notice under Maryland’s Local Government
Tort Claims Act.
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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.
district
motion

court
to

documents

I disagree, and would hold instead that the

abused

quash
sought

its

based
by

discretion

on

the

its

in

granting

blanket

Appellants

the

conclusion

were

BCPD’s

that

the

irrelevant.

And,

looking to the domino effect of that decision on the Appellants’
subsequently denied motion to substitute, I do not believe that
the court’s error was harmless.

Accordingly, although I concur

in the remainder of the opinion, I am unable to join Part II.B.

I.
In considering the district court’s decision to quash the
Appellants’ request for documents related to Cook’s death, the
majority

properly

district

court

on

emphasizes
appeal.

the

deference

Review

for

that

abuse

of

we

owe

the

discretion,

however, does not mean a district court’s authority is carte
blanche.

See United States v. Under Seal (In re Grand Jury),

478 F.3d 581, 584 (4th Cir. 2007) (“A district court has abused
its

discretion

if

its

decision

is

guided

by

erroneous

legal

principles or rests upon a clearly erroneous factual finding.”
(quoting Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th
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Cir. 2006))); see also United States v. Mason, 52 F.3d 1286,
1289, 1293 (4th Cir. 1995) (noting the deferential standard of
review, but finding an abuse of discretion).

Mindful that I may

not substitute my judgment for that of the district court, I
believe nonetheless that in quashing the Appellants’ document
request in its entirety on relevance grounds, the court abused
its discretion, and that this error in turn infected the court’s
analysis

of

“good

cause”

as

to

the

Appellants’

later-filed

motion to substitute.
As support for its decision to grant the BCPD’s motion to
quash,

the

satisfied

district

that

the

court

stated

documents

simply

sought

by

that
[the

irrelevant to the claims that are now pending.”

it

was

“fully

Appellants]

are

J.A. 18. 1

I do

not dispute that most of the documents sought by the Appellants
were irrelevant.

Yet the relevance of documents responsive to

the

requests—including

first

interviews,

three

surveillance

records,

incident
and

reports,

statements

from

witness
police

officers related to the tragic events of August 14, 2007 and
1

The majority also highlights the district court’s
assertion that the BCPD should not be put to the expense of
assembling the requested documents.
The expense consideration,
however, trailed the court’s relevance finding.
That is,
immediately after determining that the requested documents were
“irrelevant,” the court opined that “[t]herefore, the [BCPD]
should not be put to the expense” of assembling them. J.A. 18.

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involving

Filed: 08/24/2012

Cook—is

equally

Pg: 55 of 63

clear.

Moreover,

in

opposing

the

BCPD’s motion to quash, the Appellants specifically argued that
some of the documents would lead to evidence regarding their
claims against Officers Howard and Green “and would also lead to
the disclosure of the identity of the other police officers at
the scene.”

Id. 192 (emphasis added).

Significantly, had the

district court ordered the BCPD to produce those documents that
were relevant to the remaining claims, the Appellants would have
known on or before October 15, 2010 that Officers Fried and Choi
were also involved in Cook’s pursuit.
Thus, it is little wonder, as the majority acknowledges,
that the district court’s wholesale quashing of the requests
“related to Cook’s death” is “more problematic.”
19.

Maj. Op. at

I agree, particularly given that the operative procedural

rule grants a district court the power to quash or modify a
subpoena.

See Fed. R. Civ. P. 45(c)(3) (emphasis added).

In my

view, a district court abuses its discretion when—as in this
case—it

fails

available

to

to
it

recognize
before

or

consider

ruling

on

a

the

motion

range
to

of

options

quash.

For

example, in Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
818-19 (5th Cir. 2004), the Fifth Circuit held that the district
court abused its discretion in quashing a subpoena “outright,”
noting in part that the court did not “attempt to modify the
subpoena to cure any overbreadth” and adding that “[g]enerally,
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modification

of

a

subpoena

Pg: 56 of 63

is

preferable

to

quashing

it

outright.”

See also Linder v. Nat’l Sec. Agency, 94 F.3d 693,

698

Cir.

(D.C.

subpoena

(agreeing

that

generally

is

1996)

preferred

to

“a

modification

outright

of

quashing,”

a
but

finding no abuse of discretion where the subpoena request could
not be modified “in any fruitful manner”).

Here, the district

court’s decision to quash in toto the Appellants’ request for
production of documents swept far too broadly.
While reluctant to concede the district court’s error, the
majority nevertheless attempts to excuse it by noting that the
BCPD

acknowledged

produce

in

the

“non-privileged,

responsive

documents

in

motion

to

quash

its

obligation

non-disciplinary/personnel
its

possession

.

.

.

to

related

that

pertain

specifically to the facts and circumstances of the August 14,
2007 incident.”

J.A. 178 n.2.

from

when

satisfying

put

That concession, however, is far

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

November

documents

October

15,

until

2010

return

22,

date

set

2010,
forth

well
in

after
the

both

the

Appellants’

request for production of documents and the October 12, 2010
deadline for amending pleadings.

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II.
It is against this backdrop that I consider the district
court’s related denial of the Appellants’ motion to amend their
pleadings

(by

substituting

Officers

Fried

defendants) as lacking “good cause.”

and

Choi

as

party

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

result on the Appellants’ lack of diligence.

for

that

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

Fed. R. Civ. P. 61.

affect

any

party's

substantial

rights.”

See Tagupa v. Bd. of Dirs., 633 F.2d 1309,

1312 (9th Cir. 1980) (citing Rule 61 and noting that “[t]he
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harmless error doctrine applies to discovery orders”); see also
Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (declining
to excuse the district court’s exclusion of evidence as harmless
where

a

party

“was

prevented

from

relevant to a material issue”).

fully

developing

evidence

I conclude here, however, that

the district court’s error on the motion to quash ruling was not
harmless.
In arriving at that conclusion, I necessarily concede that
the

Appellants

(1)

inexplicably

set

a

return

date

for

the

request for production of documents that was three days beyond
the scheduling order’s deadline for joining parties and amending
pleadings, (2) did not request an extension of the scheduling
order deadlines after the district court granted the motion to
quash, and (3) failed to ask the district court for permission
to conduct discovery prior to the entry of the scheduling order.
Yet these mistakes were not inexorably fatal, as “good cause”
does not demand perfection by a litigant.

See 6A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1522.2 (3d ed. 2010) (“The use of the good-cause
standard [for modifying scheduling orders], rather than allowing
modification only in cases of manifest injustice as is done for
other

pretrial

orders,

indicates

that

there

may

be

flexibility in allowing some relief.”) (citation omitted).

58

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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.
mere

eight

days

later,

the

Appellants

filed

the

motion

A
to

substitute, arguing that they “could not have reasonably moved
to amend the complaint to substitute the names of these John Doe
defendants any earlier” than November 22, 2010.

J.A. 202.

Even recognizing the Appellants’ many procedural blunders,
had the district court parsed the request for documents when
considering the motion to quash, and ordered the production of
those

documents

that

were

patently

relevant,

the

Appellants

would have obtained the reports of Officers Fried and Choi by
October 15, 2010 at the latest—rather than five weeks later.
Admittedly, the Appellants may nevertheless have been left to
file

an

untimely

motion

to

substitute,

but

a

trial

judge

considering whether there is “good cause” to allow such a motion
surely must account for the length of the delay.

See O’Connell

v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir.
2004) (affirming denial of motion to amend filed five months
after the scheduling order deadline and concluding that “[s]uch
a long and unexplained delay vindicates the district court's

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conclusion

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that

plaintiffs

were

Pg: 60 of 63

not

diligently

pursuing

this

litigation”). 2
As

did

the

district

court,

the

majority

faults

the

Appellants for failing to more actively pursue discovery on the
front end of the case regarding the other officers involved in
the pursuit.

Fair enough, but here again, some context helps to

soften the blow.

Specifically, as emphasized at oral argument,

while the Appellants suspected that other officers were involved
in

the

alleged

conspiracy

following

Cook’s

death,

they

also

believed that Howard and Green were the officers who initially
pursued Cook—and this belief was not without reason.
Shortly after Cook’s death (but before filing suit), the
Appellants requested that the BCPD preserve and produce certain

2

Curiously, the district court’s order denying the motion
to substitute makes little mention of the seven-week delay
between the filing of the motion and the deadline in the
scheduling
order
for
seeking
such
relief.
A
general
frustration,
however,
with
various
other
delays
in
the
litigation clearly drove the court’s conclusion that the
Appellants failed to demonstrate good cause.
Specifically, the
court noted that the (1) Appellants’ motion to substitute came
nearly three years after Cook’s death, (2) suit was filed in
February 2010 and although the scheduling order was not entered
until September 9, 2010, this was due to the Appellants’ naming
of several improper defendants, and (3) Appellants did not move
for leave to conduct pre-scheduling order discovery.
Any
frustration on the part of the district court with the slow
progress of the litigation—a sluggishness that the court
attributed solely to the Appellants—was certainly not helped by
the filing of a motion to substitute seven weeks past the
scheduling order deadline.

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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

defendants,

and

involvement

in

disclosure
Officers

said
the

Howard

nothing

November

Fried

and

22,

Choi

Green

were

properly-named

of

Officers

Fried

and

Choi’s

It

pursuit.

on

and

was

until

the

BCPD’s

2010—which
dated

not

included

August

14,

reports

from

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.”
Howard’s

Maj. Op. at 30.

answer

to

For example, although Officer

interrogatories

listed

Officers

Fried

and

Choi as present at the scene, he does not assert that they were
involved in the pursuit.

And in his later deposition, Officer

Howard agreed that he “did not recognize” Officer Fried, J.A.
733, and did not know Officer Choi. 3

3

Further, although Officer

Admittedly, Green testified at his deposition that Choi
was among the officers who responded to the scene where Green
was with Cook’s body, and that he ultimately learned that
(Continued)
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Bradley testified in his deposition that he told Cook’s fiancée
shortly after the incident that he “saw” Officers Fried and Choi
at the scene, id. 499, Cook’s fiancée stated in her answer to
interrogatories only that Officer Bradley indicated that “two of
his co-workers were already there” when he arrived, id. 859.
But even conceding that the Appellants should have been
more conscientious in pursuing discovery, I think it necessary
to

consider

their

shortcomings

against

the

backdrop

district court’s error on the motion to quash.

of

the

On that score,

it bears repeating that the documents disclosed on November 22,
2010 fell well within the ambit of the Appellants’ first three
requests for production of documents, and that had the district
court not quashed the request for these relevant documents, the
Appellants

would

have

learned

of

Officers

Fried

and

Choi’s

involvement in the pursuit by at least October 15, 2010, if not
sooner.

It is conceivable then that the Appellants might have

been able to comply with the district court’s deadline in the

Officer “Freel or Fried, I believe” was pursuing Cook that day,
and that “Officer Choi may have assisted.”
J.A. 828.
Such
vague statements, however, do not suggest that the Appellants
“almost certainly could have ascertained [Officers Fried and
Choi’s] presence significantly earlier than they did.” Maj. Op.
at 30. Indeed, even when presented with a photograph of Officer
Fried, the most Officer Green could say was that “[i]t looks
like it could be [the officer who pursued Cook],” but that he
was “not sure.” J.A. 829-30.

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scheduling order for amending the pleadings, or at worse have
been a few days beyond it, thus making the “good cause” analysis
a far closer question.
In

short,

I

believe

that

justice

requires

the

district

court to consider anew its “good cause” determination on the
motion to substitute, in light of its failure to consider the
full breadth of its discretion on the motion to quash, and the
resulting impact on the Appellants’ ability to timely discover
the relevant facts warranting an amendment to their pleadings. 4

III.
For the reasons set forth above, I dissent from Part II.B
of the majority opinion.

4

In a footnote accompanying its order denying relief on the
motion to substitute, the district court suggests that the
Appellants’ attempts to join Officers Friend and Choi might well
have been futile under Federal Rule of Civil Procedure 15. The
district court, however, never reached the merits of the
proposed amendment under Rule 15, and neither do I.

63